We feel bound to reverse this case. The fact that defendants, after they refused to receive the fence ordered for them by plaintiffs, ‘ actually purchased an iron fence,’ and the amount paid for such fence, were wholly irrelevant to the issues on trial in this cause. Their tendency was, at least, to confuse and distract the minds of the jurors, if not to mislead them.—Crews v. Threadgill, 35 Ala. 334; Storey v. Union Bank, 34 Ala. 687: Tanner v. Louisville and Nashville Railroad, at the present term; Sayre v. Durwood, 35 Ala. 247; 1 Brick. Dig. 808. See, also, authorities on brief of appellant.
The charge asked by plaintiffs, though copied substantially from the opinion in Jarrell v. Lillie, 40 Ala. 274, was rightly refused. It was calculated to mislead the jury, by a confusion of terms. The rules, deducible from the various rulings of this court, which should govern the jury in weighing evidence in civil causes, may be summarized as follows : If the testimony be evenly balanced, or in equilibrium, which is the same thing, then the verdict must be against the party on whom the burden of proof rests,—Lindsey v. Perry, 1 Ala. 203; Jarrell v. Lillie, 40 Ala. 271, A charge, asserting that the jury must find according to the preponderance of the evidence, is erroneous, because that preponderance may not convince the minds of the jury.—Mays v. Williams, 27 Ala. 267. So, a charge that a jury can not find a verdict on the preponderance of evidence, would be equally erroneous ; for the preponderance of evidence might satisfy the minds of the jury. We can not clearly comprehend how evidence can be weighed, without considering its equilibrium, or preponderance. That is implied in the mental process of weighing. The true measure, or weight of proof, to justify a verdict based upon it, is, that it shall reasonably convince, or satisfy the minds of the jury, that the fact exists. This conviction, or satisfied mind, may rest on a preponderance of evidence, if that preponderance produces reasonable conviction of the mind. But, while preponderance, or tendency of the evidence, may produce conviction, it does not neces*616sarily do so; and it is error to instruct tbe jury, as matter of law, that either one or both requires tbe jury to base their verdict upon it. It may convince them, and they may find their verdict upon it. It does not necessarily do so ; and if it does not, as matter of fact, convince their minds, they should not find their verdict upon it.—1 Brickell’s Dig. 335, § 5; Ib. 337, § 20.
We do not assent to tbe proposition that, in this case, the ‘basis of the contract,’ is tbe contract itself.
Beversed and remanded.
Bricicell, O. J., not sitting, having been of counsel.