I cannot concur in the view that the agreement to take and pay for the policy of title insurance is not a part of the entire contract. Shenk, the owner of the property, had applied for such insurance and had made it a condition of the sale that the defendant should take that policy off his hands and pay thérefor the amount specified in the contract. The check for that amount was given, not to Shenk, but to the plaintiff who was not a party to the contract. Had the action been brought by Shenk and had the defendant counterclaimed for damages for fraud, *473instead of pleading as he did that he had received no consideration for the check and asking that the complaint be dismissed, then the proof might have been admissible. Such counterclaim for damages would have been consistent, being based on the theory of affirming the contract while claiming damages for the fraud in inducing it.
Even if this judgment is affirmed, the defendant is not without remedy. He can .still recover from Shenk, the man he dealt with, the damages suffered through Shenk’s fraud.
The judgment should be affirmed, with costs.
Judgment reversed and new trial granted, with costs to appellant to abide event.