Breen v. Arnold

Siebeckee, J. The points raised and argued upon the record present the inquiry: Has the plaintiff a right to recover the purchase money paid by him for the lot in question ? It is averred that the cause of action for the recovery of the $250 paid by the plaintiff and Wirtz on the purchase price of the lot is a joint claim, and that a settlement between Wirtz and the defendant and dismissal of Wirtz as a plaintiff with Breens consent operated as a full satisfaction of the plaintiff’s right to recover his share of the money paid on the purchase price. The court correctly held that the relationship of copartners between the plaintiff and Wirtz did not exist. It is apparent from the transaction that the plaintiff and Wirtz, under the contract, if consummated, would have been tenants in common of the five-acre lot and that they each individually agreed to pay one half of the purchase price. Under the circumstances Wirtz in no way had the legal right to settle the plaintiff’^ claim for the recovery of the purchase money paid by him, and the court properly denied the defendant’s motion for judgment upon this ground. It is contended that the court erred in awarding judgment on the verdict because the record fails to show there was a rescission of the contract. The jury found that the defendant breached the contract for sale and purchase of the lot in that 531 be failed to provide tbe plaintiff an abstract as agreed. Tbe evidence warrants tbis finding. It also appears that tbe defendant was unable to make delivery of tbe deed as called for by tbe contract of sale and that be failed and refused to comply with tbe terms and conditions of tbe agreement. Tbe plaintiff bad a right to stand on sncb breaches of tbe contract of sale and demand tbe return of tbe money be paid ■under it with interest. Tbe jury awarded him tbis amount and tbe judgment must be affirmed as correct. It is urged that tbe plaintiff forfeited bis right to recover bis costs in tbe action under sec. 2894a., Stats., because be omitted to perfect the judgment within sixty days after tbe rendition of tbe verdict. Tbe record shows that tbe defendant made a motion for judgment after tbe verdict. Tbis state of tbe proceeding necessarily required that entry of judgment be held in abeyance until tbe court bad passed on tbis motion. It also appears that tbe defendant’s motion for a new trial was pending. Tbe costs were taxed and allowed July 12, 1913. Tbe record is not clear and definite when the court passed on these motions. Since, however, tbe court refused to disallow costs, it must be presumed that the costs were taxed within tbe sixty days thereafter as required in such cases. Dresser v. Lemma, 122 Wis. 387, 100 N. W. 844; Circuit Court Rule XXXIII. By the Court. — -Judgment affirmed.