#### Breen, Respondent, vs. Arnold, Appellant.

*May 21*—

June *17, 1914.*

*Vendor and pwrehaser: Breach of contract "by vendor: Rescission: Recovery of money paid: Settlement of claim by one of several purchasers: Costs: Time for perfecting judgment.*

1. Where the vendees named in a land contract were not partners and would have become tenants in common if the contract had been consummated, one of them had no legal right, after a breach of the contract by the vendor, to settle with the vendor the claim of the other vendee for the recovery of purchase money- paid by the latter.

2. Where the vendor in a land contract failed to furnish an ab*529stract as agreed, was unable to deliver tlie deed as called for, and refused to comply with the terms of the contract, the vendee had a right to stand upon such breaches and recover the money which he had paid.

3. Where, after a verdict in plaintiff’s favor, defendant moved for judgment and also moved for a new trial, the sixty days within which, under sec. 2894a, Stats., plaintiff must perfect his judgment in order to he entitled to costs, did not begin to run until such' motions were determined.

4. In such a case, where the record does not show when the motions were determined, and the trial court refused to disallow costs, it will be presumed that the costs were taxed in due time.

Appeal from a judgment of the superior court of Douglas county: Chakles Smith, Judge.

*Affirmed.*

This is an action brought by the plaintiff to recover from the defendant the money the plaintiff paid defendant on a contract for the purchase of a lot. ■ It is shown that the defendant, on March *11,*1911, as agent for the owner of the lot, made an agreement with the plaintiff to sell him a five-acre lot of land and that the plaintiff paid the sum of $125 of the purchase price; that the plaintiff received a receipt which embraced the agreements of the parties, by which a conveyance of the lot by warranty deed was to be given to the plaintiff and one J. J. Wirtz. Wirtz also paid the sum of $125 on the purchase price of the lot. The lot consisted of five acres of land and was valued at $2,250. It was agreed that the defendant should furnish the plaintiff and Wirtz an abstract and that the conveyance should be completed by the payment of the balance of $2,000 on or before June 15, 1911. The plaintiff procured the money and held it on deposit in a bank and was ready to pay his one-half part of the purchase price on April 18th, at which time defendant informed him that the owner of the lot refused to convey the lot specified in the agreement unless a sale and transfer were made of another lot of five acres situated in the same plat. The bank, acting as the owner’s agent for delivery of the deed and to re*530ceive tbe purchase money for the lot from the plaintiff and Wirtz, insisted that both lots be transferred at the same time as a condition to conveying the lot for which the plaintiff and Wirtz had bargained. The jury found that the defendant wholly failed to deliver the abstract as agreed by the parties to this transaction, and a general verdict for the plaintiff assessing his damages at the sum of $136.81. The court awarded judgment in plaintiff’s favor for this amount and for costs. This is an appeal from such judgment.

The cause was submitted for the appellant on the brief of *E. I.'Tipton,*and for the respondent on that of *W. P. Crawford.*

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 *531be 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.