No. 14742
IN THE SUPREME COURT OF THE STATE OF MONTANA
1979
JACK KENEALLY,
Plaintiff and Appellant,
STERLING ORGAIN and NATIONAL
CASH REGISTER COMPANY (NCR),
Defendants and Respondents.
Appeal from: District Court of the Thirteenth Judicial District,
Honorable Charles Luedke, Judge presiding.
Counsel of Record:
For Appellant:
Calvin A. Calton argued, Billings, Montana
For Respondents:
Anderson, Symmes, Brown, Gerbase, Cebull and Jones,
Billings, Montana
John K. Addy argued and James L. Jones argued, Billings,
Montana
Submitted: November 7, 1979
Decided :
tJm 0 1984
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Filed:
2&N 3 0 19%
Mr. John C. Sheehy delivered the Opinion of the Court.
Jack Keneally appeals from an order of the District
Court, Thirteenth Judicial District, Yellowstone County,
granting summary judgments against him, as described hereafter,
on his claims against Sterling Orgain and National Cash
Register Company.
National Cash Register Company (NCR) is engaged in the
business of selling various types of business machines. Jack
Keneally began working for NCR in its Butte office in 1968.
After promotions there, Keneally was promoted to the position
of account manager and transferred from Butte to the Billings
branch office. During the time that Keneally has been employed
by NCR, Sterling Orgain was his supervisor, first as the
Butte branch manager, and later as the Montana district
director of NCR.
Keneally's employment as account manager was terminable
at the will of either party, but was governed by an NCR
employment contract and company manuals, which were subject
to periodic NCR revision. As an account manager, he received
a straight commission based on the Billings branch office sales.
Under the NCR contract and manuals, an account manager
was not entitled to commissions on sales until the machines
had been installed and invoiced. On the termination of
employment of an account manager, commissions from sales to
one in that position were to be credited only at the time of
invoicing and were to be credited to the account manager
then assigned to the territory. Invoicing occurs only when
the machines are installed.
NCR terminated Keneally's employment in May 1975. At
that time Keneally claimed he had sold machines which would
entitle him upon invoicing and installation to $7,416.
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Keneally alleges that he was terminated not for his lack
of sales ability, but because he made complaints to
Sterling Orgain and others in the company that the service
to customers was inadequate and faulty in his territory;
that Sterling Orgain wanted to take over the Billings territory
which had a greater prospect for sales; an4 that Sterling
Orgain would profit both from the viewpoint of bonuses and
from the commissions which Keneally earned, but which Orgain
would receive after Keneally had been terminated.
Keneally charged five grounds of recovery against the
defendants:
(1) The first claim for quantum meruit;
(2) The second claim on the Montana Wage Claims statute;
(3) The third claim based on unlawful interference
with his contract;
(4) The fourth claim based on malicious interference
with his contract;
(5) The fifth claim based upon his wrongful discharge.
On motions made by NCR and Sterling Orgain for summary
judgment, the District Court granted summary judgment against
Keneally as follows: as to the first and second claim,
partial summary judgment, that is, judgment except for
invoices for machinery installed within fourteen days after
Keneally's discharge; as to the fifth claim for wrongful
discharge, summary judgment for both defendants; as to the
third claim for unlawful interference and the fourth claim
for malicious interference with his contract, summary judgment
in favor of NCR. The third and fourth claims remain as to
Sterling Orgain.
Keneally limits his appeal to the following issues:
(1) Whether appellant is entitled to recover commissions
on sales made prior to his discharge under the theory of
quantum meruit (it would follow that he would be entitled to
recover penalties and attorney fees under section 39-3-201,
et seq., MCA.)
(2) Whether appellant may maintain under the facts
here a cause of action for wrongful discharge in Montana.
The first hurdle faced by Keneally is that to prove a
claim in quantum meruit, he must do it by evidence of an
express contract, his employment contract. It is true that
in Montana one having an express contract which he has
performed may sue in quantum meruit and use the contract as
proof of the reasonable value of his services. Dalgarno v.
Holloway (1919), 56 Mont. 561, 186 P. 332; Neuman v. Grant
(1907), 36 Mont. 77, 92 P. 43; Wilcox v. Newman (1920), 58
Mont. 54, 190 P. 138. It is however a fatal variance to
allege an implied contract (quantum meruit) and to prove an
express contract, though we have recognized an exception
where full performance of the contract was prevented by the
defendant. Puetz v. Carlson (1961), 139 Mont. 373, 380, 364
P.2d 742, 746.
Keneally, however, has not brought himself within the
exception provided in Puetz v. Carlson, supra. His contract
of employment was terminable at the will of his employer.
He has not been prevented from full performance of his contract,
because under his termination provisions, he has no enforceable
contract to continue employment with NCR. See Myhre v. Myhre
(1976), 170 Mont. 410, 422, 554 P.2d 276, 282. He has no
contractual right and no implied.right upon which to base a
claim for commissions as to machines which were installed and
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invoiced after his employment was terminated. The District
Court was correct in determining that an additional fourteen
days from his termination would be required, because under
the terms of his contract, he was entitled to a fourteen day
advance notice of the termination. Commissions on machines
sold by him and invoiced and installed prior to the fourteen
day period would rightfully belong to him, but not thereafter.
Because he has no right to recovery on quantum meruit,
his claim for attorney fees and costs under the wage claim
statute also fails.
We turn now to the denial by the District Court of
Keneally's claim for wrongful discharge by the defendants.
The question is one of first impression in this Court. The
district judge, the Hon. Charles Luedke, relied generally
upon Percival v. General Motors Corporation (D. Mo. 19751,
400 F.Supp. 1322. In that case, the federal court notes the
growing tendency of the judicial system to grant relief to
persons who have been abusively or wrongfully discharged.
However, the federal court notes that this right of action
occurs only when a public policy has been violated. Thus,
that court noted, correctly, that a discharge by an employer
in a contract terminable at will does not give rise to a
claim for wrongful discharge in the ordinary sense, though
the firing or the termination may have been unjustified. It
is only when a public policy has been violated in connection
with the wrongful discharge that the cause of action arises.
Examples given by the courts are: refusal to perjure himself
in the case of one employee; firing of another employee for
asserting a right to obtain Workers' Compensation benefits to
which he was statutorily entitled; and refusal of sexual relations.
We can find no public policy violated by the discharge
of Keneally unless it may be considered that the public is
hurt when a corporation allows sales of its machines to be
made upon promises of adequate service and maintenance
and then fails with respect to the adequate service or
maintenance. Keneally had complained on this point to his
supervisors, and he contends that this is one of the principal
grounds for his discharge. The same argument was faced by
the Pennsylvania Court in Geary v. United States Steel Corporation
(1974), 319 A.2d 174, 178-79. There an employee who had
been discharged had vigorously brought to the attention of
his superiors the unsafe nature of its tubular products sold
to the oil and gas industry. After examining the problem,
the Pennsylvania Court said:
". . .The praiseworthiness of Geary's motives
does not detract from the company's legitimate
interest in preserving its normal operational
procedures from disruption. In sum, while we
agree that employees should be encouraged to
express their educated views on the quality of
their employer's products, we are not persuaded
that creating a new non-statutory cause of
action of the sort proposed by appellant is
the best way to achieve this result. On balance,
whatever public policy imperatives can be
discerning here seem to militate against such
a course." 319 A.2d at 180.
We do not disagree at this juncture that in a proper case a
cause for wrongful discharge could be made out by an employee.
The District Court here could not discern that any public policy
had been violated by Keneally's termination and neither can we.
Accordingly, we must concur.
No issue is raised on appeal as to the other elements of
the summary judgment orders.
Accordingly, the decisions of the District Court are
affirmed and the matter is remanded for further proceedings
in the cause in accordance with the summary judgments granted.
We Concur:
Chief Justice
Justices