McDonald

— The grounds chiefly relied upon by the defendant for a reversal of the judgment are, first, that the minds of the parties never met in the purchase and sale of the stock; that the plaintiff supposed he was purchasing one kind of stock, while the defendant was in fact selling a different stock; that there was a mutual mistake as to the subject matter of the sale, and consequently no valid contract; second, that the contract was void under the statute of frauds, for want of a sufficient note or memorandum in writing; third, that the verdict was contrary to the instructions, and ought to have been set aside on that ground; fourth, that the court erred in certain rulings as to the admissibility of evidence; fifth, that a new trial ought to have been granted on the ground of newly discovered evidence.

On the first point, the general rule is that if the contracting parties were under a mutual mistake as to the subject matter or terms of the contract, so that their minds never met, neither party is bound. This is familiar law. But if the contract by its terms will admit of two or more constructions, and if one of the parties at the time of contracting knows or has just grounds to…