I feel that I must record a dissent. The case is so simple that to my mind the mere statement of it proves the decision of the court wrong. The plaintiff executed to defendant a-lease in writing containing an option to defendant for a five-year extension. The premises are in Milwaukee. The plaintiff resides at Marshfield and the defendant in Milwaukee. Near the end of the term the defendant submitted to plaintiff’s agent in Milwaukee a new lease in the same terms as the original including an option for another five-year extension and asked him to procure plaintiff’s signature to it. The plaintiff’s agent answered that he did not think the plaintiff would execute a lease with the extension clause. The defendant thereupon submitted to the agent another lease like the original without the extension clause and asked that he get the plaintiff to execute *545and return one or the other of the leases. The .plaintiff claims, and the court found, that he by mistake signed the lease containing the option for extension and sent it to the defendant instead of the one without such option which he intended to sign and deliver. On discovering the mistake plaintiff asked defendant to return the lease he had and accept the one without the option for extension. The defendant refused to do so. The plaintiff, promptly and before defendant had taken any steps whatever in reliance upon the provision for a five-year extension, comes into a court of equity and asks relief on the ground of his mistake.
The defendant gave timely and proper notice to entitle him to a five-year extension of his original lease. This he was entitled to. He was not entitled to anything more. No extra rental or other consideration for another five-year extension was agreed to or given. The defendant was'not induced to accept the lease signed by the plaintiff and enter into his covenants therein contained because of the inclusion in the lease of the clause for the additional extension. He would have accepted the other lease had .that lease been returned to him. It is trué that when the defendant signed the lease returned by plaintiff he understood that the plaintiff had signed it advisedly and had thereby agreed to the additional extension. But the plaintiff had not so agreed. There was thus no meeting of the minds of the parties in respect to the extension. No such agreement was reached as the signed lease evidences.
No plainer case for relief from mistake was ever brought in a court of equity. It is true, as stated in the opinion of the court, that equity does not reform instruments for mistake unless the mistake is mutual, and that .the mistake here involved is not mutual but unilateral. But equity rescinds written instruments for unilateral mistakes. The. opinion of the court recognizes this rule. The complaint in terms erroneously asks for reformation of the lease by *546striking .out the clause for extension. The plaintiff, strictly speaking, is not entitled to the particular form of relief he asks for, because the defendant did not by signing the lease returned to him agree to a lease without the extension. But the fact is proved and found by the court that entitles plaintiff to rescission of the lease signed by him. Striking from that lease the provision for extension ahd letting the lease stand as so changed, affords the plaintiff precisely the same relief that he would have were the lease declared canceled and the defendant adjudged to have the right to hold the premises for the extended term provided for by the original lease. Strictly speaking, that is the relief that should have been adjudged. But the error of decreeing reformation instead of rescission did not affect the substantial rights of the defendant, and under sec. 274.37, Stats., the judgment should be affirmed.
There would seem to be no more need to cite authorities in support of the above than to cite the multiplication table to support the statement that once one is one. However there is ample authority for the proposition that rescission or cancellation will be granted for a unilateral mistake. See 9 Corp. Jur. p. 1168, note 74; 21 Corp. Jur. p. 88, note 49. Of the cases there cited the following directly support the proposition: Fleischer v. McGehee, 111 Ark. 626, 163 S. W. 169; Moffett v. Rochester, 82 Fed. 255; Wirsching v. Grand Lodge, etc. 67 N. J. Eq. 711, 56 Atl. 713, 63 Atl. 1119; Smith v. Mackin, 4 Lans. (N. Y.) 41; Crowe v. Lewin, 95 N. Y. 423; Frazer v. State Bank, 101 Ark. 135, 141 S. W. 941; Morgan v. Owens, 228 Ill. 598, 81 N. E. 1135; Dzuris v. Pierce, 216 Mass. 132, 103 N. E. 296; Werner v. Rawson, 89 Ga. 619, 15 S. E. 813; Diman v. Providence, W. & B. R. Co. 5 R. I. 130. The court may properly, as condition of granting the relief of rescission, require plaintiff to give to the defendant the option to take such a lease as the plaintiff intended to sign, as was in effect done in Brown v. Lamphear, 35 Vt. 252; Paget v. Marshall, L. R. *54728 Ch. Div. 255; Keene v. Demelman, 172 Mass. 17, 51 N. E. 188. But here there is no need to do even that, as adjudication that the defendant has the right to hold under the original lease for the extended period would satisfy all requirements of equity.
The opinion of the court to support the lease signed by plaintiff invokes the rule that no consideration is necessary to uphold modification of a contract. It is true that the original consideration would support modification of the original lease as evidenced by the lease signed by plaintiff, if plaintiff had agreed to the modification so evidenced. But he did not agree to such modification. The trial court so found upon ample evidence. The rule' invoked therefore has no application.
Mere inadvertence in signing the wrong lease is not such negligence as should bar plaintiff from relief. Almost every mistake involves some negligence. One using due care does not ordinarily make mistakes. Unless the mistake induces the other party to take some steps to his prejudice that he would not otherwise have taken, there is no good reason why relief should not be granted. Where no one is injured by a mistake except the party making it, and no one has changed his position in consequence of it, relief may be granted although a high degree of care was not exercised. See 21 Corp. Jur. p. 90. But in this case the plaintiff’s mistake was excusable. The trial court found that the plaintiff cannot read English and on receipt of the two leases went to his lawyer for advice. The lawyer advised him that he was not bound to sign the lease with the extension but should sign the other, and by mistake inserted the date in the wrong lease and gave it to plaintiff to sign and send to defendant. A court of equity must, under the circumstances here involved, grant relief from a mistake so happening; else it is not a court of equity.
It does not at all detract from the force of the above to quote the maxim “Equity follows the law.” Even the law *548gives adequate relief from mistakes less excusable than the one here involved; as where it refunds money paid to secure compliance with a bid for public work from which items are inadvertently omitted in making the estimate. Gavahan v. Shorewood, 200 Wis. 429, 228 N. W. 497.
I am authorized to state that Mr. Justice Stevens concurs in this dissent.
A motion by the respondent for a rehearing was granted, and the cause was reargued.
Walter Schins, Jr., attorney, and Joseph F. Schoendorf of counsel, both of Milwaukee, for the appellant.
For the respondent there was a brief by Hugo Trost of Milwaukee, attorney, and William R. McCaul of Tomah and Gog gins, Braseau & Graves of Wisconsin Rapids of counsel, and oral argument by R. B. Graves.
The following opinion was filed December 9, 1930: