By the Oourt,
Bailey, J.In this action which was brought in the Court below to recover of the jilaintiffs in error the amount of a promissory note given as part of the consideration for ten acres of land adjacent to the City of Leavenworth; the principal reliance on the part of the defense, was an alleged mistake of the parties to tifié sale. The land actually conveyed being different from and of far less value than that showm to the plaintiffs in error before the purchase, and which they supposed they were purchasing.
*383The jury under the instructions of the Court, found, among other things:
1st. That Stille was mistakep.
2d. That John II. McDowell, the agont of the vendor, in making the sale to Stille, was mistaken, but that,
3d. Andrew J. Isacks, the vendor, was not mistaken.
The charge of the Court to the jury on this part of the case was as follows:
“ The main question, or the one about which there is the most controversy, is the question of mistake, and in regard to this question, I say to you, that before you can find that there was a mistake on the part of either of the parties, you must be satisfied of that fact beyond a reasonable doubt.”
The counsel for defendants, (now plaintiffs in error,) excepted to this charge and bring their petition in error to this Court.
It is well settled that mistakes of the kind alleged by plaintiffs in error may be corrected on sufficient proof; hence the only question that can arise upon this point is as to the suffici&ncy of the proof, and upon this point the authorities are well agreed, if not as to the precise language, yet as to the effect and substance of the rule.. In the case of Gillespie v. Moon, Chancellor Kent, after a full and careful review of the previous decisions, concludes by saying:
“ The cases all concur in the strictness and difficulty of the proof, but still they all admit it to be competent, and the only question is, “ Does it satisfy the mind of the Court ?” Gillespie v. Moon, 2 John. Chancery Cases, 585.
And in the subsequent case of Lyman v. the .IT. S. Insurance Co., the' learned Chancellor, says : “ The cases which treat of this head of equity jurisdiction, require the mistake to be made out in the most clear and decided manner, and to the entire satisfaction of the Court.” Id. 632. See also same oase II Johnson R. 313.
*384Such in effect and in language slightly varied, is the rule laid down in the most carefully considered cases under this head, and 't is obvious that the rule as given to the jury by the Court below is in terms different and considerably more stringent.
The language u.seil in the charge' of the Court can only be strictly applicable to cases arising under the criminal code, and has as yet no judicial sanction as applied to civil practice.
As the conclusion we have arrived at upon this point will involve the necessity of a new trial, we deem it proper to advert briefly to one other ruling of the judge who tried this cause, touching the offer to rescind the contract.
The Court charged “ that in order to constitute an offer to rescind the contract the defendant must at the time have tendered a deed, but that if he simply verbally offered to deed hack the lots without at the same time tendering such deed, it was not in law an offer to rescind.”
"We conceive the rule of law on this point to he, that the averment, of an offer to rescind would be established by proof that the opposite party had prevented or dispensed with a formal tender of a deed.
New trial granted.
All the justices concurring.