Appeal, No. 28, Oct. T., 1896, by-defendant, from decree of C. P. No. 2, Allegheny County, Jan. Term, 1896, No. 187, on bill in equity.

Bill in equity for an account and for an injunction.

White, J., filed the following opinion:

On the 28th day of March, 1893, the plaintiff and defendant bought from W. J. Dible and J. E. Hunter a piece of ground in Turtle Creek, this county, containing about one acre, and the deed was executed to them of that date. The deed is to them as joint tenants. The consideration specified in the deed is $5,500; to be paid, $2,500 cash, and the purchasers to assume the payment of a mortgage of $2,500, and also to give a promissory note for $500, payable at one year, with interest from date. In the deed it is recited that the purchasers assume a personal liability for the payment of a certain mortgage to Bobert Caughey on the premises for $2,500.

Mrs. Katz, the plaintiff, paid the $2,500 cash. Both the plaintiff and defendant signed the note for $500. Johnson paid nothing at the time and has paid nothing since the deed was delivered. Mrs. Katz subsequently paid the note for $500, with the accrued interest on it, at the time it was paid amounting to $530. That amount was received by Mr. Dible, but immediately paid over to Mr. Johnston.

On the 1st day of May, 1893, an agreement was entered into carrying out the verbal understanding between the parties prior to that and about the time the deed was delivered. That agreement recited the conveyance to them from Dible and Hunter, and says :

“Whereas, The consideration of $5,500 above-mentioned for said piece of ground was paid to the grantors in said deed as follows, viz: $2,500 in cash by the said Mrs. Fanny Katz, and $2,500 by the joint covenant of both of the parties hereto (which is contained in the above recited deed) to assume the payment of a certain mortgage and $500 by the promissory note of both of the parties hereto for the payment of said sum in one year from its date; and

“ Whereas, it is the purpose of the parties hereto to divide said piece of ground into lots and to sell the same as conveniently can be done to good advantage,

“Now this agreement witnesseth: (1.) That the said J. W. Johnston agrees and undertakes to manage said property and to make sales thereof, in lots, to the best advantage, and at such prices and upon such terms as shall be mutually satisfactory to the parties hereto, and agreed upon by them from time to time, and to act as the agent for procuring purchasers thereof, and to write all deeds and mortgages necessary in selling and conveying said property.

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