(concurring in the result).
I concur in the result. However, I am not prepared to hold that the trial court’s finding to the effect that the defendant Stewart promised Cheney that he would pay this obligation to the plaintiff bank is unreasonable in view of the evidence, but I think a correct construction of this contract, even though we assume that this finding is correct and binding on us, requires a reduction of the amount of the judgment as held in the prevailing opinion.
By the earnest money agreement, Stewart agreed to purchase Cheney’s farm “for *235the purchase price of 23,647.80 Dollars,” and that the balance of the purchase price shall be paid by “arrangements to pay banks the amount set forth amounting to $17,647.80 also $6,000.00 payable to Ace Cheney which is the total of the purchase price as above.” At the bottom of the earnest money agreement there is a paragraph which is signed by both Stewart and Cheney in which they “agree to carry out and fulfill the terms and conditions above specified, the Seller agrees to furnish an abstract of title continued to date, or a policy of title insurance, showing a good marketable title, * * * ”.
It is elementary that the plaintiff bank as a third-party beneficiary of this agreement between Stewart and Cheney cannot recover from Stewart on this account unless Cheney, had he brought the suit, could have recovered from Stewart. For the bank is not an innocent purchaser for value without notice nor is there any es-toppel in its favor. In fact, there is no consideration for this contract from the bank. All of the consideration for Stewart’s promise was from Cheney. Under such circumstances any defense which Stewart would have against Cheney is a good defense against the bank. Our problem is to determine whether Cheney could have enforced this agreement against Stewart. From the following considerations I think it is clear that he could not.
The terms of the contract are entirely indefinite as to the different items of indebtedness which Stewart agreed to pay banks but the total amount of such debts was clearly and definitely fixed and limited to $17,647.80. It is also undisputed that Cheney owed the various banks the five items listed in the prevailing opinion. The total amount of such items was far in excess of the $17,647.80 which Stewart agreed to pay to banks. It is also undisputed that the first three items listed in the prevailing opinion were secured by mortgages which were of record against the property which Stewart' purchased, thus constituting' a cloud on the marketability of Cheney’s title. It is obvious therefore, and this fact is confirmed by evidence, that the important reason for this provision in the contract that Stewart' would pay the banks’ claims was to enable Stewart to pay these recorded liens and thereby clear his title to the property and at the same time have such payments apply 'as a part of the purchase price. This also had the effect of enabling him to clear the title to the property and pay the purchase price without exposing him to the danger that if he made the purchase price payments direct to Cheney, the liens might not be paid and he might be compelled to pay them twice. Such being the case, Stewart had a right as a matter of law to pay the first three items and thereby clear the title to the property even though he had orally agreed with Cheney that he would pay to the bank this debt here sued on, for the whole instrument clearly shows that such was the intention of the parties in making this contract. Certainly no one intended that Stewart was to pay the banks more than $17,647.80 or that when he was through paying that amount there *236would remain a cloud on the marketability of the title to the property in the form of a recorded mortgage against it.
Some argument is made that since item (3) had been assigned without assigning the mortgage which secured it, such mortgage was thereby released and was not a lien against the property. Although I disagree with the result suggested that such assignment of the note without assigning the mortgage would release the lien, assuming that it would, I think it immaterial, for the recorded mortgage was still there rendering the title to the property unmarketable. There is no claim that Cheney ever claimed he could or offered to clear this cloud from the title without this note being paid by Stewart. I therefore concur in the result.