Atwood v. Gugel, 166 Wis. 430

Atwood v. Gugel

166 Wis. 430 | Wis. | 1918

Yisjb, J.

The contract for the sale of the land was entered into November 18th. At that time taxes were not a lien upon the property- — much less due. The trial judge, therefore, is in error when he says it was the duty of the de~ *432fendants to pay them, just the same as any other incum-brance upon the property. In the absence of any agreement as to their payment no duty would have devolved upon the defendants to pay them at all. That duty would have rested upon the purchaser. Sec. 1153, Stats. 1915. In agreeing to pay them they agreed to pay a debt of the purchaser to become due in the future, and the net amount of the purchase price was reduced by the amount of the debt so paid.

The contract of agency between the parties was not, as plaintiffs counsel argue and the trial court assumed, that plaintiff’s commission was the difference between the purchase price and $20,000. The contract provided that “our price for this property is $20,000 net to us.” Any sum, therefore, which defendants were by the terms of the sale required by the purchaser to pay in order to consummate it- — ■ there being no other obligation upon them to pay such sum— must be deducted from the excess of the purchase price above $20,000 in order that the land should net them $20,000 as provided by the contract of agency. The balance is plaintiff’s commission. No claim is made that defendants did not make as advantageous terms with the purchaser as possible. Hence it follows that defendants are entitled to deduct the amount of taxes paid, being the sum of $208.54, from the $1,000 the land sold for in excess of $20,000, and the balance, $191.46, is the commission due plaintiff. This was the amo.unt of the judgment they tendered him.

By the Court. — Judgment reversed, and cause remanded with directions to enter judgment for plaintiff in the sum of $191.46, with costs in favor of defendants in both courts.