
    JOSEPH DE WYCKOFF, RESPONDENT, v. FIDELITY UNION TRUST COMPANY, APPELLANT.
    Submitted December 5, 1921
    Decided March 6, 1922.
    The defendant issued to plaintiff its policy insuring the title -of a large tract of land, the title to a small portion of which was defective because plaintiff's grantor had no title; the plaintiff called upon the defendant to perfect the title which resulted in negotiations culminating in an agreement manifested by a letter from defendant to plaintiff that if plaintiff would acquire the outstanding title at a cost not to exceed §5,000, defendant would pay him the amount of the cost as damages. The plaintiff acquired the land paying §5,000, and defendant refused to refund upon the ground that the policy only bound it to pay when it requested the party guaranteed to acquire an outstanding estate, and also that plaintiff could only recover such proportion of the insurance as the value of the outstanding estate bore to the whole. Held, that the letter which authorized the plaintiff to acquire, at his election, the outstanding estate, and if he did defendant would pay him the cost and damages not exceeding §5,000, was a sufficient request under the policy, and that the promise to pay the cost and damages not exceeding §5,000, fixed the measure of damages between the jjarties, if acted on. The defendant could settle its liability by acquiring the property, and this it did through the requested act of plaintiff, who relied on the promise of defendant to reimburse him to the extent of his disbursement.
    On appeal from tlie Supreme Court.
    Eor the appellant, Louis Hood.
    
    Eor the respondent, Patrick Henry Maley.
    
   The opinion of the court was delivered by

Bergen, J.

This action is based upon a policy of insurance issued by the defendant to the plaintiff guaranteeing him against loss arising, among other things, from a defect in title of lands to he purchased by the plaintiff. After purchase by plaintiff it was discovered that the title to a portion of the land, amounting to two and seventy hundredths acres, was defective. The liability of the defendant is not questioned, and the only matter at issue ■ is the measure of damages. After the defect in title was discovered the defendant and plaintiff made an oral agreement about the matter which at the request of the plaintiff the defendant reduced to writing as follows: “Confirming the conversation which you had with Mr. Hood in the presence of your client, Mr. De Wyekoff, and myself, in relation to the loss sustained by Mr. De Wyekoff on the guarantee issued by this company [then follows a description of the property], the Fidelity Trust Company hereby admits that a portion of the property covered by this guaranty, being approximately live hundred and ten feet on the Franklin turnpike and ranging in depth from one hundred and forty-three to four hundred and thirty-six feet alleged to be owned by one Appert, is covered by the guaranty, and that Mr. De Wyekoff has sustained damage and is entitled to recover under our policy from Fidelity Trust Company the value of that piece of. land. Fidelity Trust Company hereby waives any formal requirement as to notice, suit or judgment which may be required under the terms of its policy ; the only matter in controversy between the said Mr. De Wyekoff and Fidelity Trust Company being the amount of damage sustained by him, which is to be arrived at by mutual agreement if possible. Mr. De Wyekoff, if he so elects, is to acquire the title to said property either directly or through Fidelity Trust Company, advancing, the purchase price of $5,000, and Fidelity Trust Company is to make good to Mr. De Wyekoff the amount of his. damage under said guaranty, but in no event in excess of the said purchase price.” The plaintiff purchased the property for $5,000, and the jury awarded that sum with interest. The court left to the jury the question whether this letter was a request by the defendant to the plaintiff to purchase the property at a price not exceeding $5,000. Section 9 of the policy of guaranty provides that if there shall appear to be an outstanding estate in all or any part of the premises guaranteed which may be acquired by the party guaranteed, the latter shall on the request of the company acquire such estate, provided it shall not cost more than the amount of the guaranty. It can hardly be reasonably disputed that when it appears, as in this case, there is an outstanding estate, and the guaranteed party claiming a fulfillment of his guaranty, is told by his guarantor that he may, if he elects, acquire the outstanding estate, the cost and damages of which the company will pay him if it does not exceed $5,000; that it is a request to acquire the property for which it will pay him the agreed sum in settlement of the damages for which liability is admitted.

Appellant argues that the court erroneously left to the jury the question whether the defendant by its letter requested the plaintiff to acquire the title at the sum stated. The objection made to this is that, this being a contract in writing, its construction was a court question. We think that this writing was a clear authority to the plaintiff to acquire the title, for which the defendant would pay him $5,000, or such proportion thereof that it might cost to acquire.the property.’ The evidence shows that Mr. De Wyckoff had negotiated with the owner and agreed upon $5,000 as the price, and that this was brought to the'notice ,of the defendant, whereupon the defendant gave plaintiff the election to purchase the land, and agreed to pay him the cost of acquiring the property, not exceeding $5,000. Under these conditions the plaintiff was entitled to a direction if he acquired the land. But if the defendant is correct in its insistence that the contract should have been interpreted by the court, the leaving of it to the jury was a harmless error, so far as the defendant is concerned, for, on the face of the agreement, the defendant was hound to pay the $5,000 if, as it appears, the plaintiff in pursuance of it acquired the outstanding title. In other words, the jury would have been justified in finding, and, apparently, did just exactly what the trial court should have instructed them to do. But the trial court went further. and instructed the jury that if it did not find that the plaintiff was requested to acquire the title, nevertheless, under the policy, the defendant was bound to pay the market value of the property, the title to which was defective. This did not injure defendant, for, in view of its letter to plaintiff, it was more than defendant was entitled to. The tract of land contained about one hundred and ninety acres, and the defendant claims that the plaintiff ivas only entitled to recover under this policy such portion of the total insurance of $100,000 as the value of the two and seventy hundredths acres bore to the whole. The question thus raised we are not required to determine in this case, because the supplemental agreement determined the liability of the defendant as well as the extent of it. By it defendant’s liability was fixed and it agreed to pay to plaintiff the cost of acquiring the property to the extent of $5,000. Relying on this agreement the plaintiff purchased the property and advanced the money which defendant agreed to refund to extinguish its liability for damage under its policy.

The judgment will be affirmed, with costs.

For affirmance — The Chancellor,' Chief Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Katzenbaci-i, White, Heppenheimer, Williams, Gardner, Ackerson, Van Buskirk, JJ. 16.

For reversal — None.  