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 3 0 1984 

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