
    Fogelberg and wife, Plaintiffs, v. Cassata and wife, Defendants and Appellants: Armstrong, d/b/a Preferred Title Service Company, Defendant and Respondent.
    
      September 3
    September 29, 1964.
    
    
      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 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.  