Evans, J.
(After stating the facts.) 1. The original petition was open to the criticism that the plaintiff sought to modify by parol an apparently complete and valid written contract. Appreciating this infirmity, the plaintiff voluntarily amended the petition by alleging that both parties understood that the rent contract did not speak the true intention of the parties, and by praying that the writing be reformed so as to exclude the fruit from the operation of the contract of rent, and thus make the writing represent the contract as actually agreed upon by both parties. The plaintiff is not seeking to rescind, but to reform a contract. Equity will not reform a written contract unless the mistake is alleged and proved to be the mistake of both parties. Where the instrument does not really represent the truth of the agreement as understood by one •of the parties, it will not be reformed on the ground of the misapprehension of one of the parties, though it may be rescinded. Civil Code, §3982; Werner v. Rawson, 89 Ga. 619. The defendant was entitled to all the benefits afforded by the instrument as signed, unless his agreement was to rent the place exclusive of the fruit, and by mistake of both parties the exclusion of the fruit from the operation of the rent contract was omitted. If the writing represented the contract as the defendant understood it, of course it could not be reformed in accordance with the plaintiff’s conception of it. This view of the law was submitted to the jury, and the exceptions to the various excerpts of the charge on this subject are without merit.
2. A plain and unambiguous contract is always to be construed by the court, and no portion of such a contract should be left for construction by the jury, Kehoe v. Hanley, 95 Ga. 322. It was never contended by the plaintiff that the rent note was ambiguous *100or uncertain as to its meaning. Her contention -as expressed in the pleading was that the Avriting did not contain the actual agreement between herself and the defendant; that the fruit Avas reserved to her, but by mistake this reservation Avas omitted from the written contract. The court charged: “Noav it is a question for you to determine in this case, and an issue that is made, or one of them, as to the meaning, or what the parties intended was the meaning, of this description in this contract of the property, "the lands near Marshallville, Georgia, known as the C. S. Johnson place.’ Under the terms of the contract, gentlemen, with that expression, nothing else appearing, the defendant in this case, by that rent contract, Avould pecure the use of those lands, together with such crops as might he produced there by his efforts upon the eultivatable lands, and also the fruit that was upon the lands. By the terms of that contract, Avithout more, it would cover and include the fruit.” This charge is assailed as incorrectly interpreting-the meaning of the written contract, and because the Avords descriptive of the rented premises, as construed by the court, amounted to an expression of opinion that such construction Avas to he preferred by the jury to the oral testimony as to Avhat was the actual agreement. Nothing which the judge said in this extract from his charge can fairly be said to be an expression of opinion on the weight of e\ddence. The court construed, and properly so, the written contract as giving the lessee not only the right to use the eultivatable lands, hut also the enjoyment of the fruit of the trees growing on the rented premises and maturing during the tenancy. The court also instructed the jury that if the fruit was excepted in the agreement to rent, but by mutual mistake the exception Avas left out of the written contract, the defendant Avould not be entitled to the fruit.
3. The court charged: “You may also take into consideration the greater number of witnesses that may testify upon one side or the other of the contested issue; however, the preponderance of evidence is not necessarily with the greater number of witnesses, but it is that superior weight of evidence that inclines the minds' of honest, impartial jurors to accept and believe one side in preference to the other, regardless to the number of Avitnesses from which it may be derived.” This charge is said to be erroneous because it instructed the jury to arrive at what Avas the preponderance of the *101evidence without considering the number of witnesses from which that preponderance may be derived. The charge was not erroneous for the reason assigned. Civil Code, .§§5145, 5146.
The evidence was conflicting, but was sufficient to uphold the verdict.
Judgment affirmed on the main bill of exceptions; cross-bill of exceptions dismissed.
All the Justices concur.