(dissenting) — I cannot agree with the majority opinion in this case, one reason being that the contract of Lindeberg of November 13 to purchase Murray’s stock in the Bankers Trust Company, and Murray’s contract with the Scandinavian-American Bank to purchase certain assets of the Bankers Trust Company were, as testified to by every witness in the case, inseparable parts of one general agreement, and that Murray cannot be held to his bargain to assume the burdens and at the same time be denied the benefits. Lindeberg himself testified that the agreement was made by him to assist the Scandinavian-American *498Bank, in which he was a large stockholder, and that his agreement to purchase Murray’s stock, and the purchase by the Scandinavian-American Bank of the Bankers Trust Company, which involved the purchase in turn by Murray of certain of the Bankers Trust Company’s assets, were parts of one transaction. He testified: “I would not have cared to purchase the stock without getting the assets. The purchase of the stock and the delivering of the assets went together naturally.” This court has already held, in conformity with the general rule, that a party cannot ratify one part of a contract which is beneficial to his interest, and disaffirm that part which does not result in his benefit; that the rescission must be total. Seattle Nat. Bank v. Powles, 33 Wash. 21, 73 Pac. 887.
On November 16, after the discovery of the McDonald shortage, Lindeberg and the Scandinavian-American Bank did not elect to rescind, but in the absence of Murray, or any one acting in his behalf, they agreed to changes in the contract between the Bankers Trust Company and the Scandinavian-American Bank which did not modify the agreement of Murray to take up the unliquid assets of the trust company, and by November 20, the Scandinavian-American Bank had proceeded with the acquisition of the Bankers Trust Company’s assets, which included $125,000 in cash which Murray then had on deposit in that institution, and had obtained possession of the deposit at Seattle of Murray’s additional sum of $112,000 to complete the purchase of the assets of the Bankers Trust Company, and all this money was received by Lindeberg’s institution before Murray was notified of the changed arrangement of November 16. The sum total of the transaction is that Murray has paid out $245,500 in cash, and in exchange therefor has received unliquid *499assets of the Bankers Trust Company, under a modified agreement of which Murray was not advised, and, according to the majority opinion, the other parties to the contract now have a right to refuse to carry out the agreement to buy Murray’s stock for the sum of $14,-000, which was a part of the consideration to pass to Murray in exchange for his agreement to take up the trust company’s assets.
Furthermore, the mistake, if any there he, which the majority opinion holds is sufficient to justify a rescission is not such a mistake as would cause that result to follow. There is no question of rescission on the .ground of fraud, as fraud is expressly disclaimed. The only mistake that is alleged is the lack of knowledge as to a fact which might have had some hearing on the making of the contract. Although Lindeberg might not have entered into the contract had he known of this shortage, Murray certainly would have made the contract had he known of the shortage. The common lack of knowledge is not a mutual mistake so far as the law is concerned. As was said in Borden v. Richmond etc. R. Co., 113 N. C. 570, 18 S. E. 392, 37 Am. St. 632: “A unilateral error does not avoid a contract.” And even though there may be exceptions to this rule, as was stated in Bibber v. Carville, 101 Me. 59, 63 Atl. 303, 115 Am. St. 303:
“While a court of equity may decree the rescission of a contract for a mistake which is unilateral, the power should not be exercised against a party whose conduct has in no way contributed to or induced the mistake, and who will obtain no unconscionable advantage thereby.”
There being no fraud in the case, no mutual mistake, and no mistake which induced Murray, who has secured no unconscionable advantage by reason of the *500contract, to make the contract, a court of equity will not rescind.
For the reasons stated, I dissent.
Holcomb and Hovey, JJ., concur with Mackintosh, J.