Opinion bt

There was an agreement for the. sale of real estate between the parties which contained the following provision, “the premises are to be conveyed clear of incumbrances, except that the party of the first part assumes no liability to deliver the property free from the possession of its present occupants. The title is to be good and marketable and such as will be insured by any reputable title insurance company.”

This present suit is brought for the recovery of the down money deposited by the plaintiff, for the reason, *88as he alleges, that he was unable to procure insurance from any reputable title insurance company. At the trial of the case there was a conflict of testimony. A number of trust companies had been asked to insure the title and declined, but the testimony of the witnesses differed as to the reason which induced the companies to refuse to insure. The- court held that if the jury found that the title companies declined to insure the title because of what they considered a defect in it, the plaintiff had the right to recover back his $250, for there was a failure to perform the conditions imposed by the agreement. If, however, the only reason for the failure to insure the title was the objection to the possession of the present occupants, then the plaintiff could, not recover. There was testimony sufficient to support either finding. The jury found in favor of the plaintiff. We do not think that the court could have settled the question as a matter of law. It is true, the construction of the agreement was for the court, but there being a dispute as to the testimony the decision necessarily went to the jury. The plaintiffs were entitled to have a good and marketable title, such as would be insured by any reputable title insurance company, barring the possession of the present occupants. Such insurance, the jury found, the plaintiffs were unable to procure.

The construction that the court put upon the agreement was as favorable to the defendant as he could reasonably ask. It was in accordance to the request contained in his third point which the trial judge affirmed.

It appeared that the plaintiff, Holz, signed the original receipt as well as the agreement upon- which suit was brought as agent, and also at a certain point in the proceedings filed a writing with the sheriff in making a bid for the property as agent for Eva Demp. Holz, however, testified upon the trial that the use of the name of Demp was simply for purposes of his own; that *89he wished to have a mortgage given upon the property which mortgage she was to execute, but that he was the actual principal in the matter, paid his own money, and was the only one interested. The receipt and agreement which he signed as agent did not disclose the principal. The court was right in holding there was no sufficient evidence of agency to warrant a submission of that fact to the jury. Furthermore, it does not appear that the rights of the defendant in the matter are in any way affected.

Objection is made that the court erred in declining defendant’s third point. The court declined this point “because of its confusion, ambiguity and assumption of facts which the jury must determine.” The fact that the point assumed certain facts would not be a valid reason for the court to overrule it, if there were testimony in the case which if believed, would support the facts alleged. The facts assumed, however, were not properly stated in the point submitted. The defendant attempted to give the gist of the agreement of writing, or the contract which was the basis of the suit, but omitted in his reference to it, the very point which caused the trouble between the parties and that is that the title should be such as would be insured by any reputable title insurance company. The reference to the written agreement may not have been necessary to the proposition he wished the court to affirm but as he saw fit to incorporate it in the point he should have included all its essential parts. The statement therefore contained in the proposition was incomplete and the court was right in declining the point.

The other point urged by the defendant is that since there was a receipt given for $250, for which suit is brought, that the agreement which was afterwards entered into between the parties was nudum pactum. It appears, however, from the testimony in the case that at the time the receipt was given it was only regarded as temporary and that the parties had in contemplation an *90agreement to be drawn by an attorney which was to take the place of the temporary receipt. There is nothing inconsistent between the receipt and the agreement. The receipt provides for a good and marketable title, the purchaser to take subject to the possession of the present occupants. The agreement amplifies this thought and expresses what the intention of the parties was in this regard; that the title to be good and marketable was such as a reputable title insurance company would insure. The second agreement took the place of the first. It was signed and sealed and therefore a valid consideration is implied and want of consideration is not a valid defense to an action upon it: Clymer v. Groff, 220 Pa. 580.

The other objection urged by the defendant is that the court did not give binding instructions for the defendant. This objection has already been covered and needs no further reference.

All of the assignments of error are overruled and the judgment is affirmed.