
    Robert Freed, Plff. in Err., v. John Richey.
    In an action by the vendor against the purchaser, for the purchase money of land, it is a good defense that the vendor agreed to convey a marketable title and has not done so.
    This rule applies where the vendor obtains the land under a contract of exchange with a third person who thereby -undertakes to make title directly to the purchaser.
    
      Nuts. — A vendor cannot recover the purchase money, where his title is not marketable. Elliot v. Tyler, 3 Sad. Rep. 584; Holmes v. Woods, 168 Pa. 530, 32 Atl. 54; Batley v. Eoerderer, 162 Pa. 460, 29 Atl. 868; Hamilton v. Grossman, 130 Pa. 320, 18 Atl. 634.
    
    (Argued May 9, 1888.
    Decided May 21, 1888.)
    July Term, 1888, No. 28, E. D.,
    before Gordon, Oh. J., Paxson, Sterrett, Green, Clark, and Williams, JJ.
    Error to the Common Pleas of Fayette County to review a judgment on the verdict for the defendant in an action of assumpsit
    Affirmed.
    This was an action by Robert Freed against John Richey to recover $1,100, and interest, the purchase money for a house and lot in Pennsville alleged by the plaintiff to have been bought from him by the defendant and conveyed to the defendant by Jacob J. Slonecker, in accordance with the following agreement :
    Article of agreement made and concluded this 15th day of March, 1878, between Robert Freed, of Bullskin township, Fayette county, and state of Pennsylvania, of the first part, and Jacob J. Slonecker, of the township, county and state aforesaid, of the second part, Witnesseth: That the party of the first part, for the consideration hereinafter mentioned, doth, for himself, his heirs and assigns, covenant and agree with the party of the second part, his heirs and assigns, by these presents, that he, the party of the first part, shall and will, on or before the 25th day of March, 1878, at the proper costs and charges of the party of the first part, his heirs and assigns, by general warranty deed well and sufficiently grant, convey, and assure unto the party of the second part, his heirs and assigns, in fee simple, all that tract of land situate in Bullskin township, county and state aforesaid, bounded and described as follows, viz.: on the east by the Connellsville and Mount Pleasant road, on the north by land of Chalfant and Campbell, on the west by lands of Dillinger, Sherri ck & Co., and on the south by lands of J. and J. Pichey, containing 20 acres, more or less. In consideration whereof the party of the second part agrees to pay to the party of the first part, $2,100 in money, and a certain house and lot of ground, with all the appurtenances thereto belonging, in the village of Pennsville, Bullskin township, county and state aforesaid, containing % of an acre, more or less, for which the party of the second part, his heirs and assigns, agree to make to John J. Pichey and Joseph Pichey a good and lawful warranty deed. In testimony whereof, we have hereunto set our hands and seals this day and year first above mentioned.
    Robert Freed [Seal]
    Jacob J. Slonecker [Seal.]
    As this article was originally written, the deed was to be made by Slonecker “to the party of the first part.” At some time, it does not appear when, this was struck out, and “John J. and Joseph Pichey” was inserted. How Joseph Pichey came to be named, no one could tell. He swore that he had nothing to do with the transaction, and so did John; and neither Freed nor Slonecker could say that he had; but there was some evidence that his name was inserted with the consent of John.
    Slonecker made and executed a deed for the Pennsville house and lot to J. and J. Richey, and left it at Joseph Richey’s house with his mother. Whether this delivery was according to directions of John Pichey or not was disputed.
    John Pichey, while admitting that he had contracted to purchase the premises from Freed for $1,100, alleged that the contract was for a marketable title. (His testimony on this point is quoted in the opinion.) Freed denied this and introduced evidence that John Pichey agreed to take whatever title Slonecker had. John Pichey proved, under objection and exception, that Slonecker had not a marketable title. [10, 11]
    The court below, Ewing, A. L. J., refused to charge as requested by the plaintiff’s second point, as follows:
    . The question of the validity of Slonecker’s title to the Pennsville house and lot is not material to the issue in this case, nor is the question of tbe possession of tbe same; if tbe jury believe tbat John Ricbey agreed to accept Slonecker’s warranty deed for tbat bouse and lot and upon receiving said deed to give the plaintiff bis judgment note for $1,100 payable in one year from April 1, 1878, with interest from tbat date, tbe plaintiff is entitled to a verdict for tbe said amount. [1]
    
      Ans. If by this is meant tbat if tbe jury believe that Ricbey agreed to accept tbe Slonecker title, sucb as it was, and for any defect therein to rely upon Slonecker’s warranty in tbat deed, and tbat tbe deed according to that agreement was executed and delivered, then tbe point is correct, and tbe validity of tbe title or tbe question of possession under it is not for your .consideration. As we have stated to you, tbat. only becomes a question for your consideration in case you find tbat tbat was not tbe agreement between tbe plaintiff and defendant. [8]
    Tbe court also refused tbe plaintiff’s third point which was as follows:
    John Ricbey testified tbat be knew, before tbe article of agreement was signed, tbat there was a dispute about tbe title, and tbat be was satisfied to take Slonecker’s warranty deed for tbe title; and there being no testimony to contradict this evidence, tbe plaintiff is entitled to a verdict for $1,100, with interest from April 1, 1878. [2]
    Tbe court left it to tbe jury to say whether or not Freed bad agreed to convey to John Ricbey a marketable title and whether or not tbe title was marketable. [3 — 7, 9,12]
    Verdict and judgment were for tbe defendant.
    The assignments of error specified: (1, 2) Tbe refusal of tbe court below to affirm tbe plaintiff’s second and third points; (3-7, 9, 12) portions of tbe charge; (8) tbe answer to tbe plaintiff’s second point; and (10 and 11) tbe admission of evidence of tbe want of title in Slonecker.
    
      John Collins and Edward Campbell, for plaintiff in error.
    Tbe court virtually tried tbe case as if it were tbe case of land sold by Freed to Ricbey, where some difficulty about tbe title or possession bad entered into the question of tbe payment of tbe purchase money. This is not sucb a case. This is simply where one has caused another to part with bis property by relying on bis contract to do a certain thing. In sucb a case it is immaterial whether any benefit accrues to tbe first party or whether bis expectations are realized. Cbitty, Contr. *29; Meason v. Kaine, 67 Pa. 126; Livingston v. Byrne, 11 Johns. 555; Weaver v. Wood, 9 Pa. 220; Parker v. Urie, 21 Pa. 305; McMullin v. Glass, 27 Pa. 151.
    
      Boyle, Mestrezat, & Boyle, for defendant in error.
    The judgment is in accordance with the views expressed in Freed v. Richey, 115 Pa. 361, 8 Atl. 626.
   Per Curiam :

The question whether the defendant had agreed to accept meh title as Slonecker had to the lot in question, or whether he was to have a marketable title, was fairly submitted to the jury. Under the evidence the court could not have instructed the jury that the title to the Pennsville house was not material to the issue. The defendant testified: “I bought it from Robert Freed and was to pay him $1,100; that was the agreement; they went on and wrote the article, and I asked Slonecker about the title to that property; he said it was good; I told him I heard it was in dispute; he said it had been but it was settled now; I told him that if there was any trouble about it, that I didn’t want to have anything to do with it, but if he would make me a good title and give me a good warranty deed I would take the property.”

The defendant was dealing directly with the plaintiff, and the fact that the title was to come through Slonecker is not material. He asserts that he was to get a good title; there was evidence properly admitted to impeach it, and the court submitted it to the jury under adequate instructions.

Judgment affirmed.  