Tilton v. James L. Gates Land Co.

• Decision Date: 11 May 1909
• Citation: 140 Wis. 197,121 N.W. 331
• Parties: TILTON ET AL. v. JAMES L. GATES LAND CO. ET AL.
• Court: Wisconsin Supreme Court

140 Wis. 197

121 N.W. 331

TILTON ET AL.

v.JAMES L. GATES LAND CO. ET AL.

Supreme Court of Wisconsin.

May 11, 1909.

Appeal from Circuit Court, Clark County; Charles M. Webb, Judge.

Action by Lester Tilton and others against the James L. Gates Land Company and others. Judgment for plaintiffs, and defendants appeal. Modified and affirmed.

The material part of the complaint in the action alleged that on or about March 22, 1900, the plaintiff Lester Tilton entered into a contract with the defendants, whereby said plaintiff was employed to show prospective purchasers such lands as either of said defendants should require him to show, and that defendants agreed to pay for such services, in the event of a sale being made of any lands in Clark county which the said plaintiff should be called upon to show prospective purchasers, a commission of 5 per cent. of the selling price of the land as compensation for his services and expenses if the purchaser had been procured through defendants or their agents or employés, and 10 per cent. of such selling price on sales made through the efforts of the plaintiff without aid from the defendants in procuring the buyer; that thereafter said Tilton formed a copartnership with his coplaintiff, Roberts, who assisted in carrying out said contract with the knowledge and consent of defendants; that plaintiffs sold lands pursuant to such agreement, and earned as commissions on account of such sales the amount of $6,000 over and above set-offs; and that plaintiffs did and performed all of the conditions of the contract on their part. Judgment was demanded for $6,000 upon the cause of action stated. A second cause of action was set up, but is not involved on this appeal.

The portion of the answer material, in so far as the questions presented on this appeal are concerned, sets forth that plaintiffs breached their contract by failing to forward to defendants moneys collected and notes received on land sales, and by failing to work exclusively for defendants in selling their lands, all of which they were required by said contract to do. For a first counterclaim the defendants set forth the various breaches of the contract complained of, and averred that by reason thereof they suffered damages to the amount of $30,000. As a second counterclaim the defendants set forth that the copartnership between the plaintiffs was formed July 16, 1900, and that on such date the account between the plaintiff Tilton and the defendants was stated, and it was agreed that there was then due defendants $3,036.49, which sum the plaintiffs, for a valuable consideration, agree to pay the defendants. Furthermore, that the plaintiffs failed to account for moneys and notes coming into their hands as agents, and sold lands other than those in which defendants were interested, and induced prospective customers, sent to Clark county by the defendants at their expense, to buy lands in which defendants had no interest. Certain items of advances made by defendants to plaintiffs were also set forth as part of the counterclaim. The defendants' damages on the second counterclaim are placed at $5,667.47, which sum includes the amount of the alleged account stated. For the most part the reply consists of denials of the foregoing allegations of the answer. It admitted, however, that by virtue of the contract the plaintiffs were obliged to work exclusively for the defendants, but alleged a subsequent modification of such contract, by the terms of which plaintiffs were permitted to make such sales as they did make of lands belonging to parties other than the defendants.

The case was referred to a referee to hear, try, and determine. The referee found, among other things, (1) that after the written contract (which consisted of two letters passing between the parties) was made it was so modified that plaintiffs were authorized to sell other lands than those of the defendants, where the prospective purchasers refused to buy defendants' lands; (2) that plaintiffs made sales for defendants under said contract, upon which sales they were entitled to commissions amounting to $5,275.95; (3) that there was paid plaintiffs on account of their services $806.47, and no more; (4) that plaintiffs performed all the terms and conditions of their contract; (5) that plaintiffs were justified in refusing to continue work under the contract by reason of the failure and refusal of the defendants to pay past-due commissions for services thereunder, and that defendants were not entitled to any damages because of plaintiffs' refusal to continue work; (6) that defendants failed to sustain the allegations of their second counterclaim; (7) that the attachment levied in this action upon the defendants' property was not levied maliciously, and that defendants suffered no damages therefrom other than the costs and expenses incurred for counsel fees and disbursements in procuring the dissolution of the attachment, which damages were found to be $500. The referee found as a conclusion of law that the plaintiffs were entitled to judgment for $3,911.50, with interest and costs. The defendants moved the court to vacate certain portions of the referee's report and to modify other portions thereof, and for judgment upon the report as modified. The plaintiffs likewise moved to modify the report in certain particulars, and for judgment thereon as modified. The circuit judge disallowed one item of commission amounting to $120 which had been allowed by the referee, and allowed another item of commission which had been disallowed by the referee, amounting to $300. The total payments made by the defendants to the plaintiffs or either of them after the contract was made amounted to $2,806.81. This sum was also allowed defendants by the court as a payment upon the transaction sued on. The referee disallowed a large portion of this amount because he held that the defendants were indebted to the plaintiff Tilton in a large amount of money for services rendered prior to the 22d of March, 1900, when the written contract was made, and offset a portion of the payments made after that date against the indebtedness which he found existed at that time. No other modifications were made in the referee's report by the court, and judgment was entered in plaintiffs' favor for $2,426 damages, besides interest and costs, from which judgment defendants appeal.

Winkler, Flanders, Bottum & Fawsett (L. M. Sturdevant and James G. Flanders, of counsel), for appellants.

Blatchley & Gilbertson (F. T. Tucker and Homer C. Clark, of counsel), for respondents.

BARNES, J. (after stating the facts as above).

Numerous errors of fact and of law are assigned. Those involving questions of fact can be grouped under three heads: (1) Erroneous allowance of commissions not earned or due when suit was commenced; (2) failure to award damages against the plaintiffs for breaches of their contract, which it is claimed were established on the trial; and (3) refusal to hold that there was an account stated between the parties on July 16, 1900. The errors involving questions of law that it is deemed essential to discuss in view of the conclusions reached on questions of fact are: (1) Was a cause of action stated in the complaint? (2) Were plaintiffs justified in abandoning their contract before its expiration? (3) What was the measure of defendants' compensatory damages because of the wrongful attachment? (4) Should punitory damages have been awarded defendants because of malice on the part of the plaintiffs in making the attachment? With reference to questions of fact little in the way of discussion need be indulged in. A statement of the conclusions reached should suffice. The record, containing over 1,400 pages, affords abundant opportunity for a lengthy opinion, but we fail to see where discussion would accomplish any useful purpose.

1. Commissions were allowed plaintiffs amounting to $202 on account of sales, where such commissions were not due at the time the action was commenced by reason of the necessary amount not having been paid on the purchase price of the lands sold. These commissions, however, became due and payable long before the trial of the action. The fact that the sales were made was admitted by the defendants on the trial; and there can be no controversy about the amount due on account of the same. We think that under the facts disclosed the objection is technical, and the error is immaterial, and should be disregarded under section 2829, St. 1898, and the plaintiffs should be permitted to recover the amount of the items. Commissions were erroneously allowed on sales to Henry Bentx, Charles Oleson, and William Klass, amounting to $100. We find no testimony in the record to sustain the allowance of these items of commission, and respondents' counsel does not point out any evidence that would warrant the allowance. The same is true of an item of $100 commission allowed on a sale to George Reitz. It seems quite apparent that there is a duplicate allowance of commission amounting to $100 on a single sale covering the same land; one allowance being made on account of a sale to Kuhn & Reitz, and the other because of the sale of the same land to George Reitz. The evidence is reasonably satisfactory that the only sale made was to the firm, and it does not appear to be disputed. In reference to another item of commission amounting to $35, which it is urged was erroneously allowed on a sale to J. J. Kurtz, there is a scintilla of evidence in the record to sustain the finding, in that the plaintiff Tilton testified that he was entitled to the commission. He does not, however, deny the facts, which were testified to in behalf of the defendants, which show satisfactorily that plaintiffs were not entitled to the allowance. It follows that items of commission amounting to $235 were erroneously allowed and included in the judgment. As a sort of an equitable offset to these items, counsel for ...