I dissent from the ruling granting a new trial upon exceptions to parts of the charge quoted. The charge as given was a correct charge. In the first part of the charge the court correctly *54instructed the jury that “the burden is upon the defendants to prove by a preponderance of the testimony their right under the contract to own and possess the property.” And this was a correct charge; that is, the burden rested generally upon the defendants to establish by a preponderance of the testimony “their right under the contract to own and possess the property.” They would have to show by a preponderance of the evidence their performance of their part of the contract, — the contract which they must also establish by evidence to that degree of certainty required by the law. The degree of certainty required of the defendants of establishing the contract by evidence was defined by the court to the jury in the following language: “The terms of the contract must be established to a reasonable certainty, and the consideration must be clearly and satisfactorily proved.” When the court instructed the jury that the terms of the contract must be established “to a reasonable certainty,” that was equivalent to instructing them that it must be established to a reasonable and moral certainty. And to establish a contention to a “reasonable and moral certainty” is in substance the same as establishing it beyond a reasonable doubt. The cases cited in the opinion of the majority, holding that where a judge gives an erroneous instruction in one part of the charge the error is not cured though in a subsequent part of the charge the judge gives the correct charge, are not applicable in the instant case; because the first part of the charge excepted to was not error. In that first part the court was dealing merely with the general requirement imposed upon the defendants to establish their right by a preponderance of the evidence; and then the court laid down the appropriate rule showing the necessity of proving the terms of the contract sought to be enforced to a reasonable certainty. Mr. Justice Gilbert concurs with' me in this dissent.