Opinion
March 5, 1952 —
April 8, 1952.
APPEAL from a judgment of the circuit court for Milwaukee county: WILLIAM I. O'NEILL, Circuit Judge. Affirmed.
For the appellant there was a brief by Torphy Torphy Milwaukee, and oral argument by Martin J. Torphy.
A. W. Richter of Milwaukee, for the respondent.
Action commenced by plaintiff Harry Ketay against defendant Max Gorenstein to recover damages for breach of a written contract for the sale of certain real estate in the city of Milwaukee. From a judgment for the defendant, plaintiff appeals.
On December 4, 1945, the plaintiff entered into the following contract with the defendant, a licensed real-estate broker:
"The undersigned does hereby offer to purchase two lots which are particularly described as follows, to wit: [Description omitted] upon the following terms and conditions, total purchase price being the sum of $2,863, payable as follows:
"(a) The sum of three hundred ($300) dollars, which has been paid to Max Gorenstein, as agent.
"(b) By assuming and agreeing to pay the outstanding, delinquent taxes on the said premises.
"(c) Any additional amount which may be due, in cash, at the time of the closing of this deal.
"It is understood that the seller will furnish to the undersigned buyer a full and complete abstract of title to the premises, brought down to date and to be submitted ten days prior to the closing of this deal for examination by buyer's attorneys.
"It is further understood that the said premises shall be conveyed by warranty deed in fee simple, showing no outstanding incumbrances except the taxes hereinabove mentioned.
"Deal to be closed on or before December 30, 1945."
Payment of the $300 mentioned in (a) was made by plaintiff to the defendant prior to the date of the contract.
Defendant testified that he did not prepare the contract; plaintiff could not remember who prepared it; both parties testified that it was signed at plaintiff's office. After the contract was signed defendant delivered the abstracts to plaintiff's attorney for examination of the title.
Thereafter it was ascertained that delinquent taxes on the property amounted to more than the purchase price and a dispute arose as to who was to pay the taxes in excess of $2,563, $300 having been paid defendant as his commission. Plaintiff contends that the total consideration agreed upon was $2,863. Defendant contends that the consideration was $300, and that it was presumed that $2,563 would cover delinquent taxes; that in the event taxes plus $300 amounted to less than $2,863, plaintiff was to pay the difference to defendant.
In the construction placed upon the contract by the trial court, it was incumbent upon the plaintiff to assume all of the delinquent taxes whether they exceeded $2,863 or not, and that since he refused to pay any sum in excess of $2,863, he failed to comply with the terms of the contract; the court dismissed the complaint.
In the interpretation of this contract, we must consider it as a whole in order to give each of its provisions the meaning intended by the parties. State ex rel. Dept. of Agr. M. v. Badger Dairy, Inc. (1944), 245 Wis. 229, 14 N.W.2d 34; Hampton Plains Realty Co. v. Melvin Co. (1934), 214 Wis. 128, 252 N.W. 572.
Appellant states that the intention of the parties is clear from the contract itself, but in order to arrive at the construction contended for in his argument it would be necessary to reject certain portions of the contract. This we cannot do unless it presents an irreconcilable inconsistency, and we do not find such an inconsistency here.
The "total purchase price" of $2,863 was to be paid by appellant as follows: $300 to the respondent as his commission; payment of the delinquent taxes; payment to respondent "any additional amount which may be due." For the payment of this consideration, the premises were to be conveyed to appellant "by warranty deed in fee simple, showing no outstanding incumbrances except the taxes hereinabove mentioned."
In effect, appellant's contention is that for payment of the total consideration of $2,863 he was to receive from the respondent a warranty deed showing no incumbrances whatever. This construction would do violence to the clause stating that a deed would be delivered showing no incumbrances except delinquent taxes.
It is not necessary to ignore any provision of the contract in order to arrive at the intent of the parties. Here is a situation where, obviously, the exact amount of delinquent taxes was not known to either party at the time the agreement was signed. Expert testimony adduced at the trial showed that the market value of the lots in question in December, 1945, was $4,140, so we may assume that both parties knew they were worth considerably more than $2,863. Under these circumstances, and attributing ordinary business sense to both parties, it would seem that appellant would have been willing to assume payment of the outstanding taxes, as he did in paragraph (b) of the contract, even though they should amount to more than $2,563; but respondent would hardly have been willing to sell the property at such a low figure that he would lose money in the transaction. Respondent protected himself against the latter contingency by agreeing to deliver a warranty deed showing no incumbrances except the taxes assumed by the appellant under paragraph (b) of the contract.
We agree with the trial court that the only fair interpretation of this contract is that under paragraph (b) appellant agreed to assume and pay all delinquent taxes even though they should exceed $2,563; that under paragraph (c), if the taxes should have been less than that figure, he agreed to pay the difference to the seller. Respondent agreed only to sell the property for $300 commission and to give a warranty deed showing no incumbrances except the outstanding taxes.
By the Court. — Judgment affirmed.