¶1Applications of this character are addressed to the discretion of the court and will not be granted unless the contract is made according to the requirements of the law, and is fair, equitable, reasonable, certain, mutual, on good consideration, consistent with policy, and free from fraud, surprise or mistake.
¶2The agreement set forth by the petitioner is made according to the forms of law, and is apparently fair, equitable, certain, and mutual, consistent with policy, and made on good consideration, and if there were nothing more in the case the petitioner would be entitled to the relief sought.
¶3*64But the respondent sets up in his answer fraud and mistake, and justifies his refusal to execute the contract on those grounds; and the parties were at issue upon the question whether there was either fraud or mistake to justify the refusal. The court found both and dismissed the bill.
¶4The questions here are raised upon the motion for a new trial. That motion sets forth certain rulings of the court in relation to the admission of evidence offered to prove the allegation of fraud. In respect to the ground of mistake? although alleged in the answer and found by the court, the motion is silent. It is obvious that if the mistake set up and found was a material one, the respondent was justified in his refusal to execute the agreement, and that a new trial can be of no service to the petitioner; and a consideration of the alleged erroneous rulings of the court in the admission of evidence is unnecessary. We cannot doubt the materiality of that mistake.
¶5The parties were both residents of the state of New York? and unacquainted with our laws. The respondent was selling a very large property, valued at more than fifty thousand dollars, on time. Twenty-five thousand dollars worth of that property was personal. There were also engagements for the fulfilling of contracts, upon which, if unfulfilled, the respondent would be liable for considerable damages. The cash down payment was small, and for the performance of the contract by the petitioner he stipulated for no other security than a mortgage upon the property sold. . The respondent was entitled by the agreement to no security for the safety of the large amount of personal property, or the performance of the contracts which he had made with others, except a chattel mortgage upon that personal property, and the agreement was made upon the supposition that such a mortgage would be valid. The parties were mistaken, such a mortgage would be worthless unless possession was retained by the vendor. It is too clear for doubt that the respondent never would have entered into that agreement but for the mistaken supposition that in the execution of it he was to have the protection of a valid mortgage on twenty-five thousand dollars worth of personal *65property, and it is equally dear tliat such a mistake is a most material one, and that it was the right and the duty of the respondent to refuse to execute the agreement upon discovering the mistake. It would be grossly inequitable and unjust to compel him to perform it.
¶6Certain circumstances are relied upon by the petitioner to relieve the case from the operation of this mistake. It is found by the court that “ there was an expectation that, if by the laws of Connecticut the chattel-mortgage was not a good and valid security, while the mortgagor remained in possession of the chattels mortgaged, such other and further security should be given by the petitioner as should secure to the respondent the payment of the purchase money, but there was no express agreement to that effect, and no understanding as to the nature of such further assurance.”
¶7But this cannot aid the petitioner. It was an expectation merely, not a part of the agreement relied upon, nor of any subsequent or further agreement, nor was there any offer of other and different security made or tendered at the time when the tender of. the five thousand dollars was made, and a deed demanded, or at any other time. Offers of payment are found to have been subsequently made, but they were not tenders and were subsequent and inadequate.
¶8And in this connection we cannot avoid looking at the false representations made by the petitioner, and the facts found in l’elation to his character. Whether they do or do not show an attempted fraud, they most certainly do show that the respondent as a prudent man ought not to have fulfilled this contract at the time when demand was made upon him, without the most ample and undoubted security. Such security he could not have under the agreement, and equivalent and adequate security was never tendered him.
¶9A consideration of the 'other questions in the case is unnecessary. A new trial must be denied.
¶10In this opinion the other judges concurred ; except Park? J., who dissented.