Parties, in attempting to make a contract, sometimes appear to have agreed, when on closer inquiry they discover they have not. They misunderstand each other, either as to the subject-matter, or as to some term of the agreement. There is, in such case, an absence of that indispensable element of all contracts, the concurring assent of two minds. Sanford v. Howard, 29 Ala. 648. When this is the case, and it is sufficiently shown, any court having jurisdiction will declare there is no contract.
When, however, the two minds come together, and agree on the terms of a contract, and a mistake is made, not in the terms agreed, but in their expression, or the memorial made and kept to furnish evidence of them, chancery, as a rule, will reform the memorial or evidence, so as to make it express their real agreement. This is the general rule, and the averments in the present bill bring it clearly within the rule. Alexander v. Caldwell, 55 Ala. 517; Dozier v. Mitchell, 65 Ala. 511; Berry v. Sowell, 72 Ala. 14; Berry v. Webb, 77 Ala. 507; 1 Story Eq. Jur. § 165; Pom. Eq. §§ 852 et seq.; Graham, v. Berryman, 19 N. J. Eq. 29; Conover v. Wardell, 22 Ib. 492; Bowley v. Klannelly, 30 Ib. 612; 2 Pom. Eq. § 866.
And having acquired jurisdiction to reform the writings, it will retain it, and grant full relief. — Reese v. Kirk, 29 Ala. 406.
The decree of the chancellor is affirmed,