As a complete defense to this action to enforce .specific performance of a contract for the sale of a farm, certain false and fraudulent representations were alleged in the original answer, by reason of which the defendant was induced to believe that plaintiff was paying him $32 per acre therefor, and that such was the consideration named in the written agreement, while, as a matter of fact, $22 was wrongfully inserted therein by the authorized agent of plaintiff with the intent to deceive the defendant, whose mental incapacity is alleged as follows: “That the defendant then was, and for a long time prior thereto and ever since has been, of a weak mind, and to a great extent incapacitated from attending to business; and for many years prior to the last-named date and on that date this plaintiff lived and resided upon said premises, living alone in a small house thereon, and having no family. That on the last-named date two persons, whose names are unknown to the defendant, came to this plaintiff’s place of residence on the premises in the complaint and herein described, and, fraudulently taking advantage of defendant’s incapacity, procured him to sign a certain writing relative to the sale of defendant’s said land to the plaintiff. That said writing was in the English language, and this defendant is unable to read the English language, or to readily understand the same when spoken; the said defendant being of Scandinavian origin, and using the Scandinavian language alone in his communications, written or verbal, with others.” It is urged as reversible error that, under the foregoing averments, and over the objection of counsel for plaintiff, the court admitted testimony showing total incapacity of the defendant, and then, after the decision was announced in his favor, granted leave to file an amended answer'to conform to such evidence as follows: “Inat the defendant was, and for a long time prior thereto and ever since has been, of weak mind, of inferior intelligence, and to a great extent incapacitated from attending to bus-*16in ess, ancl at the time mentioned, to-wit, October 3, 1900, was incapable of transacting business, or knowing- what he was doing, or of comprehending the subject of a contract or agreement such as is set forth in paragraphs 2 and 3 of the complaint in this action, and the nature, effect, and probable consequence thereof. That while so incompetent and incapacitated he signed the purported agreement or contract mentioned in the complaint, as therein set forth. That on or about the 22nd day of October, A. D. 1900, the defendant first discovered that he had signed such purported contract or agreement, whereupon he at once rescinded said contract, and notified the plaintiff thereof, and forthwith returned to the plain-, tiff the check for fifty dollars delivered to' him at the time of signing said written agreement or contract.” ,
As the original answer was unassailed by demurrer or motion, and confessedly sufficient to admit testimony to the effect that respondent was of weak mind, and greatly incapacitated from attending to any business, evidence of total incapacity could not be excluded on the ground that it proved too much, and, there being no necessity for an amended answer, appellant was not prejudiced thereby. Consequently the only question to be determined is whether the evidence is sufficient to justify the findings of fact and conclusions of law upon which the judgment appealed from was entered. Relative to the point counsel for appellant in their brief say: “All the evidence shows that the defendant, although he was not a bright man, and had but little understanding- of the English language, and was therefore peculiarly susceptible to fraud and imposition, and although he was eccentric, morose, slow of speech and of action, inhospitable, and a recluse, yet he had ample mental capacity to make any manner of contract in the absence of fraud and misrepresentation.’-' The right to specific performance being equitable, and within sound judicial discretion, there must be a meeting of the minds in every essential particular, and the contract must be fair, and made by persons of sufficient understanding. The headnote, fully sustained by the opinion, in the case of Burkhalter v. Jones, 32 Kan. 5, 3 Pac. 559, is as follows: “While, in legal contemplation, two persons may make a contract that would he enforced at law, yet if *17it should seem probable from the facts of the case that the parties did not in fact and in equity agree to the same thing, the supposed contract would not be decreed in equity to be enforced specifically. Therefore, where the facts are such that in law it would be held that a contract of purchase and sale of a piece of land was made for the sum of $2,000, but in all probability the vendor at the time did not believe that he was making a contract to sell the land for that sum, but believed he was making a contract to sell the land for the sum of $2,100, a specific performance of the contract will not be decreed in equity against the vendor on the tender by the vendee of $2,000.” Together with facts showing that respondent was helplessly incompetent and unable to understand anything that the contract contained, the court found “that, while the agents of the plaintiff who procured the signing of said contract did not represent to the defendant that the price he was to receive was any greater than twenty-two dollars per acre, the defendant, because of his ignorance of the English language and mental inability, did not comprehend or understand the terms or purport of the contract, and did not know that he agreed by said contract to sell said land for twenty-two dollars per acre, but understood that he was to get thirty-two dollars per acre therefor.” Every imputation of actual fraud may be reasonably eliminated from this case, but not the irresistible inference that appellant was familiar with respondent’s weakness of mind and total ignorance of the English language to an extent which rendered him incapable of understanding the nature of the contract or the terms of sale and their minds never met as to the purchase price. Measured by the rule that equity requires more cogent reasons for the enforcement of specific performance than are necessary to sustain a contract that has been fully executed, we fincj. the evidence relative to plaintiff’s mental condition abundantly sufficient to show his inability to make a binding contract, and the facts found by the trial court are fully justified. The judicial tendency of this enlightened age is against the enforcement of an executory contract procured by a shrewd man of affairs from one known to be mentally incapable of dealing with judgment and discretion, and the *18act' of -taking unfair advantage of respondent's inability to understand the nature and consequences of the purported agreement to convey his homestead is good ground for delaying specific performance, aii especially so when, as in this case, he has returned to the prospective grantee all that he ever received.
Finding no error of law in the record, the judgment appealed from is affirmed.