Before KNOCH and CASTLE, Circuit Judges, and MERCER, District Judge.
In his complaint for $150,000 in damages, plaintiff alleges that he and The Bendix Corporation, hereinafter sometimes called "Bendix," entered into a contract on or about May 28, 1951, whereby Bendix would employ plaintiff at $400 per month, the employment "to be permanent."
The contract was evidenced by a writing, plaintiff's exhibits 2 and 2A, which consist of an original and carbon copy of handwritten entries on Bendix's printed Employment Requisition forms, dated April 5, 1951, one section of which reads as follows:
The form states that plaintiff is to be employed as "Staff Assistant" and that his salary rate is "subject to increase at end of six months."
Plaintiff further alleges that he had been employed by Bendix until August 15, 1954; that although he requested "permanent employment pursuant to the aforementioned agreement," defendant refused to employ him.
Defendant answered denying that the employment, which began on or about May 28, 1951, was to be "permanent" unless "permanent" was construed to mean "terminable at will," and asserting, inter alia, that plaintiff had, on May 21, 1951, signed an "Employee's Patent Agreement" in which he acknowledged that his employment was on a month to month, or day to day, basis; and, further, that plaintiff had, in writing, released defendant from all claims to employ him.
Plaintiff asserted in his reply that he executed the release "under duress, coercion and undue influence." Plaintiff uses all three terms ("duress," "coercion" and "undue influence") generally together. He complains that the District Judge failed to consider all three, and that the District Judge disposed of the matter of duress only. Study of plaintiff's deposition in the Court below and of the briefs filed in the District Court and in this Court, however, indicates that plaintiff uses these three terms as though they were legal synonyms, all meaning "duress." The same conduct is described as constituting the duress, coercion and undue influence of which complaint is made. In his brief filed below, Bendix's counsel stated that the term "duress" would be used to cover all three terms in his brief and argument. It appears that the District Court adopted the same procedure in his opinion.
The District Court granted Bendix's motion for summary judgment, and dismissed this action. Plaintiff appealed.
In his deposition, plaintiff stated that he was a practicing attorney admitted to the Bar of Indiana in 1939, that he was employed to work initially on the temporary Controlled Materials Program at Bendix, with the understanding that he would be transferred to work of a permanent nature.
On July 15, 1951, Bendix requested a security clearance for plaintiff from the U.S. Navy in order to qualify him for work which required such clearance. On December 3, 1953, the Navy tentatively denied that clearance on the stated groun that:
"[Your] past behavior, activities and associations tend to show you are not reliable."
On December 30, 1953, Bendix notified plaintiff that he was discharged effective January 15, 1954. Plaintiff believed that termination of his employment would terminate the proceedings on his security clearance, and that his reputation would be seriously damaged by suspension of the proceedings at the point of tentative denial. He, therefore, requested a leave of absence in place of discharge. In response to that request, George E. Stoll, an officer of Bendix, wrote plaintiff the following letter, which was delivered to him at the Bendix plant on the same day or the day following: