Before BIGGS, Chief Judge, and McLAUGHLIN and KALODNER, Circuit Judges.
McLAUGHLIN, Circuit Judge.
This non-jury litigation is before us for the second time. It is a diversity action by plaintiff employee against his employer for breach of an employment contract extending from April 14, 1959 to July 30, 1961. In the first trial at the conclusion of plaintiff's affirmative case, his claim was dismissed because of the court's decision that it was for less than the statutory amount. The trial judge additionally held: "In the alternative, however, in the event that it is finally adjudicated that the court does have jurisdiction, then on the merits of the case, judgment is directed against the plaintiff, W. S. McAleer, and in favor of the defendant, McNally Pittsburg Manufacturing Company, together with costs." We concluded that the money damage contended for exceeded $10,000, exclusive of interest and costs.
With respect to the alternative finding, as we stated, 3 Cir., 307 F.2d 220, 223, "[the] attention of the trial judge seems to have been directed more or less exclusively to the affirmative defense theory of mitigation of damages." We found at p. 224 on the undisputed evidence, that "[plaintiff] had shown a definite contract with the defendant whereby he was to finish out a specific period of part time employment at a reduced wage." Then we said at p. 224:
"Mitigation of damages had nothing to do with plaintiff's affirmative claim for salary from defendant. Whatever plaintiff earned from Loftus under the arrangement he had with defendant was no concern of the latter. Plaintiff was entitled to have his claim properly considered. And the defendant was entitled to present its defense including mitigation of damages to same and have it properly considered.
"The judgment of the district court will be reversed and the case remanded for trial on the merits."
After the second trial the court filed an opinion to be "regarded as including the Findings of Fact and Conclusions of Law * * *", together with an order directing that judgment be entered against the plaintiff and in favor of the defendant.
In that opinion the court found specifically that there was a contract for the particular employment involved. The opinion states, 214 F.Supp. 740:
"Plaintiff W. S. McAleer had been a valued long time employee of defendant, McNally Pittsburg Mfg. Corp., and in charge of its regional office in Pittsburgh, Pennsylvania. In the Spring of 1959 defendant transferred the major portion of its activities from Pittsburgh, Pennsylvania to Pittsburg, Kansas. Plaintiff's salary with defendant had been approximately $14,000.00 per year with an annual bonus which ranged from $7,000.00 to $16,000.00 per year in addition to his salary. On April 14, 1959, Mr. McNally, for the defendant, wrote two letters to the plaintiff. In plaintiff's exhibit 1, the subject of the letter is styled 'Closing of Pittsburgh Office'. Mr. McNally reviews the reasons why the business is to be transferred away from Pittsburgh. In this letter he says:
'By a separate letter I am proposing that you continue to represent us in Pittsburgh from your home.'
He discusses other features of the Pittsburgh business, mainly with regard to transferring certain files to plaintiff's home in order to service two accounts, but says:
'* * * your home files should be kept to the barest minimum.'
In the second letter, plaintiff's exhibit 2, the question of plaintiff's employment is dealt with specifically. Mr. McNally refers to the other letter of the same date indicating that plaintiff should restrict his activities to the Koppers and Wilputte accounts. He then says:
'I propose that this arrangement continue until your retirement, which appears to be July 30, 1961, presuming that the volume of coke oven machinery ...