after stating tbe case: If the instrument is an option, plaintiffs cannot recover, as they have not complied with it by accepting the offer and paying the first installment of the purchase money on the day named ( Weaver v. Sides, 216 Pa. St., 301); but if it is a contract, they can recover, as defendant has conveyed the land to a person entitled to hold it against the plaintiffs, he being a bona fide purchaser for value and without notice. Sprinkle v. Wellborn, 140 N. C., 163, and cases cited; Pritchard v. Smith, 160 N. C., 79. The agreement bears a close resemblance to a contract to convey or bond for title, but we must hold it to be in form an option, as there is not sufficiently clear indication on its face that the parties intended it for a contract of purchase, so as to invoke the jurisdiction of a court of equity to reform or amend it, or to treat it as such a contract, upon a bare inspection or examination of the instrument itself, under the rule laid down in Vickers v. Leigh, 104 N. C., 248; Smith v. Proctor, 139 N. C., 314; Bryan v. Eason, 147 N. C., 284, where there is proper allegation upon which to base the exercise "of its jurisdiction in this way. In such a case, that is, where the judge or chancellor acts by himself, without a jury, and makes the instrument reform itself, as the intent of the parties is apparent from its context, the evidence of the mistake of the parties in expressing their agreement is required to be drawn exclusively from the instrument, and facts dehors will not be considered. Smith v. Proctor, supra; Helms v. Austin, 116 N. C., 751.
The context of this paper-writing does not manifest an intention to give more than an option to buy, and the case, therefore, calls for evidence dehors the deed, if it is sought to establish a contract to sell or a bond for title. This necessarily requires the intervention of a jury to pass upon the disputed questions of fact.
*240Tbe power to decree a reformation, upon tbe bare face of tbe instrument, should be exercised sparingly and only in a clear case, as tbe authorities state. If'this were not so, we would, of course, be in danger of making tbe agreement between tbe parties, instead of merely declaring what it is, as expressed in tbe instrument, or as plainly deducible therefrom.
There is ample evidence of tbe mistake in drawing tbe agreement and of tbe fraud, and this should be submitted to tbe jury, with proper instructions as to tbe law. Plaintiffs would also be entitled to recover if tbe payment was made under a false and fraudulent representation of tbe defendant, of which there is allegation and evidence.
This case does not impress us very favorably for tbe defendant. Tbe written instrument is almost sufficient of itself to show a contract to sell tbe land, or a bond for title, as it is sometimes called, and not an option; but it is not sufficiently so to warrant us in declaring it to be such on its face, or as matter of law, as tbe court below decided.
Tbe plaintiffs, it appears, are illiterate, and, if their testimony is true, they were misled by false representations of tbe defendant into tbe acceptance of a paper which they thought either conveyed them tbe land or secured tbe title to them by contract upon their paying tbe balance of tbe purchase money, and there is much in tbe nature, circumstances, and surroundings of tbe transaction to sustain their allegation. If defendant falsely led them to believe that be was giving them a contract, when in fact it was an option, and they were induced thereby to take it, in tbe belief that it was a contract, tbe fraud of tbe defendant and tbe mistake of tbe plaintiffs brought about or induced thereby will lead tbe court either to reform or to cancel tbe instrument, as tbe justice of tbe case may require. Wilson v. Land Co., 77 N. C., 445; Sykes v. Insurance Co., 148 N. C., 13; Eaton on Equity, p. 304 (128).
It is immaterial which of tbe remedies is applied under tbe facts and circumstances of this case, as either will result in restoring tbe money paid by plaintiffs to them. Plaintiffs may recover if they establish their case by a preponderance of tbe *241evidence, provided they seek merely to recover tbe money back as having been obtained from them by a false and fraudulent representation. Culbreth v. Hall, 159 N. C., 588. If one party obtains money from another by a false and fraudulent. representation, he is liable to the defrauded party for the amount so received in an action for the deceit, and it requires only a preponderance of evidence to establish his case. Pritchard v. Smith, 160 N. C., 79, at p. 87. If he seeks to reform the instrument because of the other’s fraud and his mistake, or because of a mutual mistake, the proof is required to be clear, strong, and convincing.
The case may be tried in any one of two aspects: first, whether the parties mutually intended a-contract instead of an option, and if so, whether the parties failed to express their real agreement by mutual mistake, or whether they so failed by the fraud of the defendant and the mistake of the plaintiffs induced thereby; or, second, whether the plaintiffs were induced to part with their money by the fraud and deceit of the defendant. 20 Cyc., p. 87; Bigelow on Fraud, 63-67; Van Gilder v. Bullen, 159 N. C., 291. A verdict for plaintiffs in either aspect will entitle them to judgment for the money paid to defendant. The pleadings may be amended, if desired and the parties are so advised, though we do not intend by this to intimate that all of the views may not be well presented in the present pleadings. There does not seem to be any distinct allegation of mistake, though we perhaps might infer it by a most liberal construction of the complaint. • . .
The court erred in holding, as matter of law, that the agreement is a contract to convey, and not an option.
New trial.