Upon the trial, and on this appeal, the appellant insists that, upon the showing made, the title was valid and marketable, and that the plaintiffs, therefore, were bound to be “satisfied.” On the other hand, the respondents contend that, under the terms of the contract, the title to the premises which was to be examined by the respondents was to be “satisfactory” to them, and that, as the title, after examination, was not a satisfactory one in their judgment, they were entitled to recover the fee agreed upon for their services. I do not think, for the disposition of these contentions, it is necessary to determine whether the title was in fact valid and marketable, the question presented being whether it was a satisfactory one within the terms of the agreement made between the plaintiffs and the defendant.
There is a class of cases in which it has been held that, “when a person contracts to perform work to the satisfaction of the other party to a contract and the subject involved is a matter of taste, as the painting of a portrait, the rule is that the person for whom the *189work is to be done is the sole judge, and if he refuses to accept the work on the ground that it is not satisfactory, his decision cannot be questioned.” Moore v. Goodwin, 43 Hun, 536. And there is another class in which it has been held that it is competent for the parties to make an agreement, outside of matters relating to taste,, by which one can give to the other the right of arbitrarily rejecting the performance or tender of performance by the other party.. Gray v. Railroad Co., 11 Hun, 70. I think, considering the subject-matter of the contract and the construction to be given thereto, that it did not confer upon the plaintiffs the right arbitrarily and capriciously to refuse to be satisfied, and that in this respect it falls-within another class of cases, in which the rule has been stated as-follows:
“That which the law will say a contracting party ought to be satisfied' with, that the law will say he is satisfied with.” Mieseli v. Insurance Co.r 76 N. Y. 115; Dennis v. Association, 120 N. Y. 496, 24 N. E. 843.
Applying this rule, which is as favorable as the appellant contends for, I think that the conduct of the plaintiffs in refusing to pass the title or make the loan, without further explanation, which I think the defendant was called upon to furnish, was neither capricious nor arbitrary. The good faith of the plaintiffs is not assailed. As soon as the existence of the Van Tine-Whipple deed was known, they gave the defendant and those who were acting for him a statement of the defect, and requested suggestions or explanations which might satisfy them, and these were not furnished. The existence of this deed was sufficient to put the plaintiffs on their inquiry, it being conceded that if Whipple had gone into possession-of the houses under his deed, this would have been notice to all, and one who took title did so at his peril, no matter whether his deed' was recorded first or not. I think this proposition is sound, although that contended for by the appellant may be equally sound, that a person holding title under a recorded deed, purporting on its-face to be for a valuable consideration, is presumed to have been a purchaser in good faith and without notice of the existence of an unrecorded deed prior in date. The burden of proving that the vendor had notice is on the assailant of the title. If, however, the-title were assailed upon the ground that Whipple had gone into possession with notice, the attitude and knowledge as to the title of the-person who took from Van Tine the deed first recorded would be necessary to support defendant’s title. And in this situation, upon the question presented by the appellant as to this being a marketable title, we might with profit resort to the case of Irving v. Campbell, 121 N. Y. 353, 24 N. E. 821, where Ruger, C. J., in discussing the question as to what constituted such a title, said;
“The rule as to the quality of such title is quite fully stated by Judge Earl, in Moore v. Williams, 115 N. Y. 586, 22 N. E. 233. He there says: ‘Is a purchaser bound to take a title which he can defend only by a resort to parol evidence, which time, death, or some other casualty may place beyond his reach? - * * A good title means, not merely a title valid in fact, but a marketable title, which can again be sold to a reasonable purchaser or mortgaged to a person of reasonable prudence as security for a loan of money. A purchaser will not, generally, be compelled to take a title when. *190there is a defect in the record title which can be cured only by a resort to parol evidence.’ It was also said by Judge Andrews, in Fleming v. Burnham, 100 N. Y. 10, 2 N. E. 905: ‘A title open to a reasonable doubt is not a marketable title.’ The court cannot make it such by passing upon an objection depending upon a disputed question of fact or a doubtful question of law, in the absence of the party in whom the outstanding right was vested. * * * It would especially be unjust to compel a purchaser to take a title, the validity of which depended upon a question of fact, where the facts presented upon the application might be changed on a new inquiry, or open to opposing influences.”
It is conceded by appellant that a recorded deed is open to attack iipon the ground that there is a prior unrecorded deed, provided it can be shown that he who took under the former deed took with notice of the unrecorded deed. The existence of the Whipple deed justified an inquiry by the plaintiffs into the question as to its effect, and the probability of an attack upon the title from that quarter; and if it were made, it is conceded that the evidence to sustain the title would, in part at least, rest in parol. The inquiry, however, of the defendant, and of those whom plaintiffs in the beginning had a right to regard as his attorneys, elicited no explanation of any kind; nor upon the trial of this action was it suggested, one way or the other, as to whether or not Whipple went into possession of the property at the time of the delivery of the deed to him, or what, if any, were his relations to this title. Where, as here, the contract was that the title was to be satisfactory to the plaintiffs, I do not think the defendant could legally take the position that he would give no explanation, but would compel the plaintiffs to accept or reject the title at their peril. In this, I think, as argued by the respondents, the counsel for the appellant loses sight of the relation of the parties to this controversy. While as a matter of law the burden is upon the one that claims a title is not marketable to prove that fact, the answer is given in the suggestion that the relation between the respondents and the appellant was not that of vendor and vendee, but was that of attorneys for the proposed mortgagee and the proposed mortgagor. The appellant, therefore, stood in the light of a vendor of the property, so to speak, and it was for him to satisfy the respondents, if he could do so from the documents or other conclusive and satisfactory evidence that he might possess which was not of record, that his title was marketable; and it was not incumbent upon the respondents to make good the title of the appellant, and, if they could, to show that the title was marketable, and one upon which they could conscientiously advise their client to loan his money. While, therefore, if this had been an action for specific performance, brought by a vendor against a vendee, wherein the former had produced prima facie evidence from the record as to the validity of his title, the vendee could not reject without showing that such title was invalid or unmarketable, attorneys for a proposed lender under a contract such as was here entered into—that the title was to be satisfactory to them—are not in the same position. And where, as here, upon examination they discovered the Van Tine-Whipple deed, concerning which no explanation was given, although asked of the defendant, and the duty of giving which do*191volved on the latter, the refusal to make the loan or pass the title cannot be characterized or regarded as arbitrary, captious, or unreasonable.
I am of opinion, therefore, that the judgment was right, and should be affirmed, with costs.