The bill in this case is for a rerormation of a contract on the ground of mistake. Under such a bill a rescission of the contract on the ground of fraud in its execution and a placing of the parties in statu quo cannot be had. The two are inconsistent reliefs. A bill for reformation of a contract on the ground of mistake is for the purpose of having the contract to speak the ’intention, not of one of the parties, but of both. Hence the mistake must be a mutual one. The averments of such bill are required to be made with great particularity, and the proof to be clear and satisfactory. This rule may be said to be almost axiomatic. It has been so often repeated in the decisions of the courts as not now to call for the citation of authorities.
The decree here wa's rendered on a final submission on the pleadings and proof. The question in the case is one purely of fact. The evidence has been carefully considered, and in it there is a sharp conflict on vital issues. It would serve no purpose to here discuss in detail the evidence. Applying the rule of law which obtains in such a case as to the character and measure of proof required, we cannot say that the complainant has met the requirement and discharged the burden placed upon him by the law. We therefore concur in the conclusion of the chancellor, and his decree will be here affirmed.
Affirmed.
Tyson, O. J., and Simpson and Denson, JJ., concur.