#### Tilton and another, Respondents, vs. J. L. Gates Land Company and others, Appellants.

*April 21*

October *5, 1909.*

*Appeal: Review: Immaterial errors: Right to review by pa/rty not appealing: Findings, when disturbed: Entire contracts of employment: Brokers: Recovery of commissions: Breach of contract: Wrongful attachment of land:' Measure of damages: Punitory damages.*

1. Where, in an action to recover commissions, it appeared that certain commissions became due before the trial, and the sales on which they were based were admitted without controversy as to the amount, objection that the commissions were not due at the time the action was commenced is technical and error in their allowance should be disregarded under sec. 2829, Stats. (1898).

2. The supreme court cannot inquire into alleged errors at the instance of a respondent who has not appealed from the judgment nor filed exceptions to the rulings alleged to be erroneous.

3. Where there is evidence to support a finding, and the finding is not clearly against the preponderance of the evidence, it will not be set aside.

4. A contract for commissions “to become due on one-quarter payment of the selling price of any piece of land sold” is appor-tionable and not entire, and under it whenever a payment is made amounting to twenty-five per cent, or more of the selling price of a tract of land, the commission becomes not only due but payable.

5. If a contract of employment is for a term and is silent as to the time of payment, although the rate of compensation is at so much a day, week, or month, it is entire and indivisible and full performance must precede a right of recovery, in the absence of circumstances showing that the contract was not understood by the parties as entire; but if the contract contains language which obligates the employer to make partial payments of compensation it is divisible and action may be maintained on instalments as they become due before performance is completed.

6. Where the sufficiency of a complaint was not challenged by general demurrer, and the true contract of the parties, set up in the answer but imperfectly set up in the complaint, was established at the trial, and the parties litigated the issues aris*198ing out of such, contract, error, if any, in overruling a demurrer *ore tenus*to the complaint on the ground that the imperfectly recited contract showed that plaintiffs had not performed it, should he disregarded under sec. 2829, Stats. (1898).

7. An owner having breached his contract to pay to brokers in-stalments of commissions as lands were sold, the brokers are relieved from continuing to make sales and are entitled to commissions on sales made, although there was no showing that the brokers were prevented from making further sales or were hindered in performance by the owner’s refusal to make payments as agreed.

8. An attachment of land does not deprive the owner of its use, occupancy, or enjoyment, except that he may be unable to sell until the attachment is dissolved; and interest on the value-of the land is not the basis for ascertainment of the damages suffered in consequence of the attachment.

9. Compensatory damages allowed because of a wrongful attachment should not exceed such actual damages as are the natural and proximate result or consequence of the wrongful act in. suing out the attachment.

10.Punitory damages are not assessable as matter of right, and the question of their allowance or disallowance is one for trial courts and juries to pass upon. The supreme court will not. reverse a judgment for failure to award such damages, nor will it undertake to make an assessment thereof.

Appeal from a judgment of tbe circuit court for Clark county: Chas. M. Webb, Judge.

*Modified and affirmed.*

Tbe’ material part of tbe complaint in tbe action alleged that on or about March 22, 1900, tbe plaintiff *Lester Tilton-*entered into a contract with tbe 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 tbe event of a sale being made of any lands in Clark comity which the said plaintiff should be called upon to show prospective purchasers, a commission of five 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 employees, and ten per cent, of such selling price on sales made through the efforts of the plaintiff *199without 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 oyer and above setoffs; 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 fáiling to work exclusively for defendants in selling their lands, all of which they were required by said contract to do. Eor 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, agreed 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 *200$5,667.47, wbicb sum includes tbe amount of tbe alleged account stated.

■ For tbe most part tbe reply consists of denials of tbe foregoing allegations of tbe answer. It admitted, however, that by virtue of tbe contract tbe plaintiffs were obliged to work exclusively for tbe defendants, but alleged a subsequent modification of sucb contract, by tbe terms of wbicb plaintiffs were permitted to make sucb sales as they did make of lands belonging to parties other than tbe defendants.

Tbe case was referred to a referee to bear, try, and determine. Tbe referee found, among other things, (1) that after tbe written contrast (wbicb consisted of two letters passing between tbe parties) was made it was so modified that plaintiffs were authorized to sell other lands than those of tbe defendants, where tbe prospective purchasers refused to buy defendants’ lands; (2) that plaintiffs made sales for defendants under said contract, upon wbicb sales they were entitled to commissions amounting to $5,215.95; (3) that there was paid plaintiffs on account of their services $806.47, and no more; (4) that plaintiffs performed all tbe terms and conditions of their contract; (5) that plaintiffs were justified in refusing to continue work under tbe contract by reason of tbe 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 tbe allegations of their second counterclaim; (7) that tbe attachment levied in this action upon tbe defendants’ property was not levied maliciously, and that defendants suffered no damages therefrom other than tbe costs and expenses incurred for counsel fees and disbursements in procuring the dissolution of tbe attachment, wbicb damages were found to be $500. Tbe referee found as a conclusion of law that tbe plaintiffs were entitled to judgment for $3,911.50, with interest and costs.

*201The 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.

Eor the appellants there was a brief by *Winhler, Flanders, Bottum & Fawsett,*attorneys, and *L. M. Sturdevant*and *James G. Flanders,*of counsel, and oral argument by *Mr. Flanders.*

Eor the respondents there was a brief by *Blatchley & Gil-bertson,*attorneys, and *F. T. Tucker*and *Homer O. Clark,*of counsel, and oral argument by *Mr. A. H. Blatchley*and *Mr. Clark.*

The following opinion was filed May 11, 1909:

BaiíNes, J.

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 *202not 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, ánd should be disregarded under sec. 2829, Stats. (1898), and the plaintiffs should be permitted to recover the amount of the items.

Commissions were erroneously allowed on sales to Henry Bentz; Charles Oleson, and William Klass, amounting to *203$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 the plaintiffs urge that certain items of commission amounting to over $400, and to which plaintiffs were clearly entitled under the testimony, were disallowed and should be offset against the errors committed against the defendants. The plaintiffs do not appeal from the judgment, and neither have they filed any exceptions to the alleged errors which the referee and the court committed against them. With-the record in this condition, we fail to see how the court can inquire into the erroneous disallowance of commissions to-which plaintiffs were entitled.

2. The appellants insist that the respondents violated their contract by levying an attachment on the appellants’ property; by making threats to prevent sales before and after *204the levy; by inducing prospective buyers to purchase lands .other than those of the appellants; by circulating reports that appellants were selling lands to which they had no title; by informing customers that some of the appellants’ lands were no good; by maliciously attaching 1,240 acres of land worth over $60,000 to satisfy the claim sued on amounting to $6,000; and by preventing sales of land being made by reason of the attachment. A large amount of damages is claimed in one of the counterclaims interposed by reason of the aforesaid acts. The findings of fact on these various subjects are against appellants. As to some of the breaches complained of, we think they were quite conclusively established by the evidence. As to those which are so established, we are unable to find that any legitimate items of damage were proven.

3. There is sufficient evidence to support the finding of the referee that no account was stated between the parties in July, 1900. The same is true of the finding to the effect that defendants consented to a modification of the written agreement so as to permit the plaintiffs to negotiate sales of improved farm lands where they were unable to sell the wild lands of the defendants. To our minds the evidence is neither clear nor satisfactory in support of the finding that plaintiffs were authorized to sell wild lands other than those of the defendants, and it is altogether improbable. The evidence is conclusive that at least two such sales were made, and we should have been better satisfied had the finding been that plaintiffs breached- their contract in this regard. However, there is evidence to support the finding made, and it is not so clearly against the preponderance of evidence that it should be set aside. Under all the circumstances disclosed by the evidence, the damages recoverable for the breach, if one existed, might well have been found to be only nominal.

4. It is urged that the contract as established on the trial is entire, and that there was nothing due plaintiffs there*205under until the expiration of one year from its date, and that the plaintiffs, having abandoned performance before the year expired, cannot recover. The contract, after providing the amount of commission that should be paid on sales as made, also recited that such commissions were “to become due on one-quarter payment of the selling price of any piece of land sold.” We think this language, as used in this particular contract, is plain and unequivocal, and means that, whenever a payment was made amounting to twenty-five per cent.- or more of the selling price of the tract of land, the commissions on the sale would not only become due, but would also become payable to the plaintiffs. The plaintiffs evidently so understood the language, and the defendants from time to time made payments which would indicate, although perhaps not conclusively establish, that they placed the same construction thereon. If there is any doubt upon the point, it is really eliminated by testimony given by the officers of the defendant companies on the witness stand, which unmistakably showed that their construction of this particular clause was not different from that of the plaintiffs.

The distinction between an entire and an apportionable contract is pointed out in *Hildebrand v. Am. F. A. Co.*109 Wis. 171, 85 N. W. 268, where the rule as stated in Wood on Master and Servant (§ 84) is quoted and approved in the following language:

> “ ‘If the contract is for a term, although the rate of compensation is at so much a day, week, or month, yet, if the contract is silent as to the time of payment, it is entire and indivisible, and full performance must precede a right of recovery/ in the absence of circumstances showing that the contract was not understood by the parties as entire.”

If, however, the contract contains language which obligates the employer to make partial payments of compensation, then it is divisible, and action may be maintained on instalments as they become due before performance is completed. *La**206*Coursier v. Russell,*82 Wis. 265, 52 N. W. 176; *Clark v. Clifford,*25 Wis. 597.

It is urged, however, that the contract established on the trial was not the contract which was made part of the complaint in this action, there having been omitted from the copy annexed to the complaint the words above quoted, and that, while the complaint in tferms alleged performance on the part •of the plaintiffs, still the contract which was made a part thereof affirmatively showed that plaintiffs had not performed, and that therefore the demurrer *ore terms*should have been sustained. Under the decisions of this court in the cases of *Goodwin v. Merrill,*13 Wis. 658, and *Clark v. Clifford,*25 Wis. 597, we think that even the contract annexed to the complaint was an apportionable contract. The .appellants rely on the cases of *Hildebrand v. Am. F. A. Co.*109 Wis. 171, 85 N. W. 268; *Widman v. Gay,*104 Wis. 277, 80 N. W. 450; *Glidden v. Meyer,*110 Wis. 1, 6, 85 N. W. 656; *Koplitz v. Powell,*56 Wis. 671, 14 N. W. 831; *Diefenback v. Stark,*56 Wis. 462, 14 N. W. 621; *Jennings v. Lyons,*39 Wis. 553; *Green v. Hanson,*89 Wis. 597, 62 N. W. 408; *McDonald v. Bryant,*73 Wis. 20, 40 N. W. 806; *Manitowoc S. B. Works v. Manitowoc G. Co.*120 Wis. 1, 97 N. W. 515; *Williams v. Thrall,*101 Wis. 337, 76 N. W. 599; *Warehouse & B. S. Co. v. Galvin,*96 Wis. 523, 71 N. W. 804; *Cohn v. Plumer,*88 Wis. 622, 60 N. W. 1000; and *Malbon v. Birney,*11 Wis. 112, in support of the proposition that the contract was an entire one. The question is not material to a decision 'of the- case. The sufficiency of the complaint was not challenged by the general demurrer. The true contract was set up in the answer and was established on the trial, and the parties litigated the issues arising out of the contract set forth in the answer. We entertain no doubt that such contract was apportionable. Under these circumstances, if error was committed in overruling the ■demurrer *ore tenus,*we should hold on this appeal that it was *207*&*technical and harmless error which should he disregarded nnder sec. 2829, Stats. (1898).. A reversal because of the •error complained of would simply mean that the plaintiffs should be permitted to amend their complaint so as to make it conform to the recitals of the answer as to what the contract was, and that the parties should he subjected to a retrial of the issues that were fully litigated in the former trial.

5. It is urged that it was error to find as a conclusion of law that the mere failure to pay commissions relieved the plaintiffs from continuing to perform the contract on their part, in the absence of proof that plaintiffs were prevented from performance or that they were hindered in performance by the refusal of defendants to make payments as agreed. In support of the contention the following cases are cited: *Stephenson v. Cady,*117 Mass. 6, 9; *Winchester v. Newton,*2 Allen, 492, 494; *Myer v. Wheeler,*65 Iowa, 390, 21 N. W. 692; *Osgood v. Bauder,*75 Iowa, 550, 39 N. W. 887; *Blackburn v. Reilly,*47 N. J. Law, 290, 1 Atl. 27; *Mersey S. & I. Co. v. Naylor,*L. R. 9 Q. B. Div. 648. The majority of these cases hold that, where a contract is made for the sale of goods which is to be executed by a series of deliveries and payments, default by either party with reference to one or more of the stipulated acts will not ordinarily discharge the ■other party, unless the conduct of the party defaulting be such as to evince an intention to abandon the contract or a design to be no. longer bound by its terms. In *Myer v. Wheeler, supra,*it is held that the rescission of a divisible contract will not be permitted for a breach thereof unless •such breach goes to the whole consideration. The Massachusetts case cited is not in harmony with the other cases. In that state it is held that if a contract for the sale of personal property requires deliveries from time to time and provides for payments being made at stated intervals, failure to pay for any instalment of goods shipped when payment is -due excuses the vendor from making further deliveries un*208der the contract. *Stephenson v. Cady, supra; Morton v. Clark,*181 Mass. 134, 63 N. E. 409; *Nat. M. & T. Co. v. Standard S. M. Co.*181 Mass. 275, 63 N. E. 900; *Nat. C. Co. v. Vulcanite P. C. Co.*192 Mass. 247, 78 N. E. 414. This court has held that where a person was employed at a stated salary per year, payable quarterly, the employee was justified in refusing to continue work under the contract after a quarterly instalment of his wages had become due and payment was refused. Such decision was reached in a case where there was no showing made on the part of the employee that he could not continue performance without embarrassment because of the fact that he was unable to get the salary due him. *La Coursier v. Russell,*82 Wis. 265, 52 N. W. 176. We think this case is decisive of the question presented and that it is well supported by other authority. See, further, *Jung B. Co. v. Konrad,*137 Wis. 107, 118 N. W. 548.

6. The referee allowed the defendants $500 for attorney fees and other expenses incurred in securing a dissolution of the attachment placed upon their property. Otherwise no damages were allowed because of the attachment, which remained upon the attached property about five months. Refusal to allow additional damages is assigned as error. It appeared from the testimony that the lands attached were rapidly appreciating in value while they were tied up. Counsel contend, however, that interest upon the value of the attached property while the attachment rested on it should at least be allowed. It is argued that such is the rule of damages applicable in the case of a wrongful attachment of personal property, and the cases of *Booth v. Ableman,*20 Wis. 602, 609; *Beveridge v. Welch,*7 Wis. 465; *Anderson v. Sloane,*72 Wis. 566, 40 N. W. 214; and *Union Nat. Bank v. Cross,*100 Wis. 174, 75 N. W. 992, are cited to support the contention made. It is urged that there is no difference in principle between the two kinds of attachment, and that *209the rule should he extended so as to include real estate. We think there is a substantial reason why interest should he allowed as damages as to one species of property and should not he allowed as to the other. Compensatory damages are allowed as compensation. When personal property is attached, the owner is deprived of its possession, use, and enjoyment, and it is right that he should he compensated for the loss of the use of that which was taken from him hy allowing interest on the value thereof when such allowance furnishes adequate compensation for the actual damage sustained. A wrongful attachment of personal property is somewhat akin to a forced loan of it. Interest may not he adequate compensation, and, when it is not, other damages are allowed. When interest is adequate to liquidate the damages, it may well he considered the minimum recovery for the deprival of the owner of the use of his property. An attachment on real estate does not deprive the owner of the use, occupancy, or enjoyment of the property in any sense, save that he may not he able to sell it until the attachment is dissolved or released. If a sale has been prevented hy the attachment, the loss consequent upon such prevention is ordinarily capable of reasonably definite ascertainment and proof. The compensatory damages allowed because of a wrongful attachment should not exceed such actual damages as are the natural and proximate result or consequence of the wrongful act in suing out the attachment. We do not think that interest on the value of the real estate attached can be said to furnish any safe basis for ascertainment of the damages suffered in consequence of the attachment.

7. It is urged that the attachment was maliciously levied and that it was error to refuse to award punitory damages. There are many items of evidence, aside frota the fact that the value of the property attached was more than ten times the amount of the claim sued on, which tend to show that the plaintiffs were actuated by improper motives in making the *210attachment. The findings are against the defendants on the point. Whether they are right or wrong is an academic question. Courts generally hold that punitory damages are not assessable as a matter of right, and this court has so held in *Robinson v. Superior R. T. R. Co.*94 Wis. 345, 68 N. W. 961, where the authorities on the point are reviewed. The question of the allowance or disallowance of punitory damages is one for trial courts and juries to pass upon, and this court will not reverse a judgment for failure to award such damages, nor will it undertake to make an assessment of the same.

The judgment in the action awards plaintiffs $2,426 damages, together with interest thereon from Eehruary 21, 1903, the date of the filing of the referee’s report, together with the costs of the action, taxed at $393.29. Interest was allowed by the referee in his computation from December 29, 1900, the date of the commencement of the action, and such interest is included in said sum of $2,426. The judgment should therefore be decreased by the sum of $235, together with interest thereon between the dates last mentioned at the legal rate, amounting to $30.27, making in all the sum of $265.27.

*By ilie Court.*— The judgment of the circuit court is modified by awarding the plaintiffs the sum of $2,160.73, together with interest thereon from February 21, 1903, and the costs of the action as taxed; and as so modified the judgment of the circuit court is affirmed. The appellants are awarded costs in this court.

A motion for a rehearing was denied October 5, 1909.