Opinion,
Mr. Justice Sterrett:This action was brought mainly to recover six hundred and fifty dollars, paid by plaintiff to defendant in consequence of an alleged mutual mistake in carrying into effect an amicable partition of real estate held by them as tenants in common. While several other inquiries of minor importance are suggested by the specifications of error, the controlling question is whether the evidence was such as to justify the court in submitting, as it did, the question of mutual mistake to the jury.
The facts and circumstances pertaining to the contention, all of which are fully presented in the record, may be epitomized thus:
After jointly stocking and farming, for several years, a tract of about two hundred and sixty acres held by them in common, the plaintiff and defendant concluded to make, as nearly as possible, an equal division of their joint real and personal property. They first divided their farming implements, live stock, and all other personal property, each taking by agreement a moiety thereof in value. With the aid of a surveyor, they then *336agreed upon a line dividing the land, as they intended, into two purparts containing each about the same number of acres, and estimated by them at the same value per acre, exclusive of the buildings, all of which were on the eastern purpart. With the view, as the jury found, of compensating the one to whom the western purpart might be allotted, for his interest in the buildings on the eastern purpart, they undertook to determiue their value; and, after each marking on paper the sum he considered them worth, they compared notes and afterwards agreed upon one thousand three hundred dollars as the fair value of the buildings. Having thus settled the location of the division line, the value of the buildings, and arranged minor matters, as to timber leave, etc., it was finally agreed that plaintiff should take, in severalty, the purpart on which the improvements were, and defendant should take the other. They then went to a justice of the peace, and executed the agreement which was given in evidence. Instead of evidencing a purpose to make an equal division of the land, both as to quality and value, coupled with compensation in money to the defendant, for his interest in the building on the purpart allotted to plaintiff, the agreement provides that the latter shall pay for the former one thousand three hundred dollars; and the money was afterwards paid. It then occurred to the plaintiff that in carrying out the purpose they had in view, throughout their negotiations and in everything that was done in dividing the land and appraising the buildings, a mutual mistake had occurred, whereby he had paid to his brother-in-law six hundred and fifty dollars more than he should have paid according to the basis on which the partition was actually made, or rather intended to be made. Failing to convince the defendant that equality of partition as to quantity and value of the land, irrespective of buildings, coupled with compensation in money for his interest in those improvements, did not mean that he was entitled to a full half of the land, in quantity and value, and the whole valuation money of the buildings besides, instead of one half thereof, the plaintiff brought this suit to recover the six hundred and fifty dollars which he alleges was erroneously paid by mutual mistake.
The action, of course proceeds upon that assumption, and on the équitable doctrine that relief will generally be granted *337in such cases when the fact of mutual mistake is established by clear, precise, and indubitable evidence. The learned judge who presided and exercised the function of a chancellor in this case was doubtless satisfied that the evidence adduced by the plaintiff was of that character. He accordingly submitted the testimony to the jury in a clear and comprehensive charge, in which they were accurately and adequately instructed as to their duties, and as to the kind and degree of evidence that was required to prove the alleged mutual mistake and justify a verdict in favor of the plaintiff. The verdict establishes the plaintiff’s version of the controlling facts. A careful examination of the evidence satisfies =us that the ease was rightly submitted to the jury, and that their verdict was fully warranted. No chancellor with the case before him, on a bill to reform the clause in the written agreement requiring the payment of one thousand three hundred dollars, instead of six hundred and fifty dollars, by plaintiff to defendant, would upon such evidence hesitate to make a decree reforming the instrument. That, we take it, is the true test of the plaintiff’s right to recover. Nothing that appears to have occurred since the making of the agreement, can be successfully urged as ground of estoppel.
Plaintiff’s genera] offer of proof, and the objections thereto are recited, in extenso, in the first specification. An examination of these has failed to disclose any error in admitting the evidence. It was both competent and relevant.
There was no error in refusing to affirm defendant’s fourth and seventh points. The former ignores the main ground on which plaintiff’s right of recovery was based ; and the latter underestimates the quality, quantity, and strength of the proof in support of plaintiff’s claim. In affirming defendant’s third point, the court instructed the jury that if they found “the plaintiff paid the defendant the $650 for which this suit was brought, voluntarily and without any constraint, duress, coercion or fraud, in pursuance of the contract between them in evidence, and with full knowledge of the facts and circumstances of the subject matter of the contract, the plaintiff cannot recover it back in this case.” This was quite as favorable to the defendant as he was entitled to.
The fourth and fifth specifications allege error in portions of *338the charge recited therein. These excerpts from the charge, as well as the entire charge, are self-sustaining, and require no vindication at our hands. There is no merit in the complaint that the learned judge did not explain what is meant by the words “ clear, precise, and indubitable,” as applied to the evidence. If defendant desired any explanation of these words, he should have requested it in his sixth point, wherein he employs the same words for the same purpose. He doubtless regarded that point as sufficiently plain for the jury to understand, and it was affirmed in his own words, viz.: “Before the executed contract, in this case, can be reformed, changed, or altered by parol testimony, the plaintiff must satisfy the court, by evidence that is clear, precise, and indubitable, that there was a mutual mistake at the time of making the contract.” The plaintiff did thus satisfy the court, as well as the jury, that there was a mutual mistake, as alleged by him, and that under it the money in controversy was paid. The evidence of that fact was, in all respects, quite sufficient.
The case was well and correctly tried. ' The defendant’s only trouble is that the evidence was overwhelmingly strong in favor of- the plaintiff’s contention, and against the “ rausgeldt or boot-money ” theory of the other side.
Judgment affirmed.