Ketay v. Gorenstein

• Decision Date: 08 April 1952
• Citation: 53 N.W.2d 6,261 Wis. 332
• Parties: KETAY, v. GORENSTEIN.
• Court: Wisconsin Supreme Court

Page 6

53 N.W.2d 6

261 Wis. 332

KETAY, v. GORENSTEIN.

Supreme Court of Wisconsin.

April 8, 1952.

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 $2,863.00, payable as follows:

'(a) The sum of Three Hundred ($300.00) 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 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.

Torphy & Torphy, Milwaukee, for appellant.

A. W. Richter, Milwaukee, for respondent.

MARTIN, Justice.

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 Agriculture and Markets 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...