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P agreed to discharge a debt to D by conveying to it good marketable title to certain real estate. The contract provided that if the title was not marketable, that P would pay D $60,000 in cash. P tendered the deed and D refused to accept it on the grounds that the title was not marketable. The trial court granted judgment to D on his first issue in that the deeds on the property in question was subject to a restrictive covenant prohibiting the erection or operation of gasoline filling stations. D had judgment for $60,000. P appealed.

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