Keneally v. Orgain
| Decision Date | 30 January 1980 |
| Docket Number | No. 14742,14742 |
| Citation | 37 St.Rep. 154,186 Mont. 1,606 P.2d 127 |
| Parties | , 115 L.R.R.M. (BNA) 4576 Jack KENEALLY, Plaintiff and Appellant, v. Sterling ORGAIN and National Cash Register Company (NCR), Defendants-Respondents. |
| Court | Montana Supreme Court |
Calvin A. Calton argued, Billings, for plaintiff and appellant.
Anderson, Symmes, Brown, Gerbase, Cebull & Jones, Billings, John K. Addy argued and James L. Jones argued, Billings, for defendants-respondents.
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. 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; and, 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...
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