130 N.W.2d 203
Supreme Court of Wisconsin.September 3, 1964 —
September 29, 1964.
APPEAL from a judgment of the circuit court for Dane county: RICHARD W. BARDWELL, Circuit Judge. Affirmed.
On October 31, 1960, the small claims court of Dane county granted judgment to plaintiffs Lyle and June Fogelberg against defendants Louis and Helen Cassata, and against Perry Armstrong, an abstractor. It appears that on December 21, 1956, Mr. and Mrs. Cassata closed a sale to
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the Fogelbergs of real estate in the city of Madison, and gave a warranty deed. On March 8, 1956, the common council had adopted a preliminary resolution for a sewer-main assessment and estimated the amount of the assessment of this parcel. The construction was completed in the fall of 1956. On December 19, 1956, Armstrong prepared an abstract in which he incorrectly certified that this sewer-main assessment had been paid.
The small claims court decided that the responsibility this unpaid assessment was not covered by the agreements the parties prior to closing, but that the Cassatas became liable for it under the warranty in their deed. Fogelbergs had paid the assessment and incurred further costs in correcting the abstract. Judgment for the amount of the assessment was rendered jointly and severally against the Cassatas and Armstrong. Armstrong was also held liable for the additional expense of correction.
All defendants appealed to the circuit court. That court modified the judgment so that the amount of the special assessment was $406.30 and the other expenses $93.70. As so modified, the judgment was affirmed February 7, 1961. Armstrong paid the whole judgment and so notified the circuit court. On March 10, 1961, the circuit court determined that Armstrong had raised an issue in the small claims court as to the ultimate liability for the assessment, and directed further hearing in the latter court on that issue.
On January 8, 1962, the county court (formerly small claims court) entered judgment in favor of Armstrong and against the Cassatas for $406.30 and costs. The court considered that the original judgment placing the responsibility for the assessment on the Cassatas as between them and the Fogelbergs had become conclusive. The court found that Cassata was in the business of constructing homes and built the home in question; that at the time of closing he knew that the sewer cost was specially assessed and unpaid; that
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there was no entry on the closing statement reflecting the assessment, that Cassata did not rely on the abstract and was not misled by the error, and his loss was not caused by the error. The court also stated that the sum of $406.30 paid by Armstrong to Fogelberg was the debt of Cassata, and that Armstrong was not a volunteer in making payment, but did so under compulsion of the judgment. The court concluded that Armstrong was entitled to restitution from Cassata.
Mr. and Mrs. Cassata appealed to the circuit court. No transcript of testimony was provided. The circuit court, noting that the only issue on appeal was whether the findings supported the judgment, affirmed. Judgment was entered accordingly September 5, 1963. The Cassatas have appealed.
The cause was submitted for the appellants on the brief of Philip L. Kapell of Madison, and for the respondent on the brief of John T. Harrington of Madison.
FAIRCHILD, J.
Appellants suggest that under the original contract for sale of real estate, Fogelbergs assumed responsibility for the sewer-main assessment. If that were true, it would seem that the ultimate result should have been that the Fogelbergs could not recover the amount of the assessment, which they did pay, from anyone, although they may properly have recovered from the abstractor additional expense caused by his error. This result would be inconsistent with the original judgment which became final after affirmance by the circuit court. The judgment was based on a finding that there was no contract before closing and imposed liability for the assessment on the sellers and the abstractor, jointly and severally, in favor of the purchasers.
In any event, however, and conceding the original judgment is no longer subject to change, appellants now argue
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that they gave the warranty on which they were held liable because of a mistaken belief, caused by the abstractor’s error, that the special assessment had been paid. On this point, they are met with the finding of the county court that Mr. Cassata knew the facts, was not misled, and his loss was not caused by the error. As pointed out by the learned circuit judge, there is no transcript of testimony on which to base a review of the finding.
By the Court. — Judgment affirmed.