66 Mich. 568, 33 N.W. 919 (1887)
In May 1886, T. C. Sherwood, a banker living in Plymouth in Wayne County, Michigan, sought to purchase cattle from Hiram Walker & Sons.1 The defendants resided in Detroit, conducted business at Walkerville, Ontario, and maintained a farm at Greenfield in Wayne County where they kept blooded polled Angus cattle that they believed were barren.2 On May 5, 1886, Sherwood visited the Greenfield farm after the defendants informed him they had a few head there that were probably barren and would not breed.3
A few days later Sherwood negotiated with one of the defendants for the purchase of the cow known as Rose 2d of Aberlone.4 On May 15, 1886, the parties reached final agreement by telephone that Sherwood would pay five and one-half cents per pound live weight less fifty pounds shrinkage.5 That same day the defendants sent Sherwood a letter confirming the sale and enclosing an order directing George Graham to deliver the cow at King’s cattle-yard, send a halter, and have her weighed.6
On May 19, 1886, Sherwood wrote Graham that he would collect the cow the following morning and instructed that she not be watered.7 On May 20 the defendants learned from Graham that the cow appeared to be with calf, telegraphed Sherwood that they could not sell her, and instructed Graham not to deliver.8 On May 21 Sherwood presented the order and letter to Graham, who refused delivery; Sherwood then tendered eighty dollars to Hiram Walker, who refused both the money and the cow.9
Sherwood commenced a replevin action in justice’s court and obtained judgment.10 The defendants appealed to the circuit court of Wayne County, where a jury returned a verdict for the plaintiff.11 After securing possession under the writ, Sherwood caused the cow to be weighed at 1,420 pounds at a location other than King’s cattle-yard.12 The cow gave birth to a calf in October 1886.13 At the time of the transaction both parties believed the cow was barren; she had cost the defendants $850 and, if capable of breeding, would have been worth between $750 and $1,000.14
Whether the letter, order, and surrounding conduct effected a completed sale transferring title to the cow Rose 2d of Aberlone to the plaintiff?15
The intent of the parties, as shown by the writings and conduct, governs whether title passes in a contract for the sale of goods; where the memorandum is sufficient under the statute of frauds and no condition precedent such as weighing is imposed before title passes, the title transfers upon dispatch of the confirming letter and order.16
Yes. The defendants' May 15, 1886 letter confirmed the sale of the specific cow at the agreed price and enclosed an order directing delivery to Sherwood, demonstrating that the parties intended title to pass without requiring the weighing as a condition precedent to the transfer, as the defendants expressed confidence in the plaintiff's integrity by allowing payment after delivery.17
The letter, order, and surrounding conduct effected a completed sale transferring title to the cow Rose 2d of Aberlone to the plaintiff.18
Whether the parties' shared belief that the cow was barren constituted a mutual mistake of a material fact permitting the defendants to rescind the transaction?19
A contract of sale may be rescinded for mutual mistake as to a material fact going to the substance of the thing sold, such as where the parties believed the cow was barren when in fact she was capable of breeding, rendering the animal substantially different from what was bargained for.20
Yes. Both Sherwood and the defendants believed the cow was barren at the time of the May 15, 1886 agreement, as evidenced by the defendants' statements to Sherwood and the low price of five and one-half cents per pound reflecting beef value rather than breeding value of $750 to $1,000, and when the cow proved capable of breeding by giving birth in October, the mistake affected the very nature of the subject matter, allowing rescission.21
The parties' shared belief that the cow was barren constituted a mutual mistake of a material fact permitting the defendants to rescind the transaction.22
Related opinions on this issue
Justice Sherwood dissented, concluding that no mutual mistake of a material fact existed that would permit rescission.23 Neither party knew the cow's actual condition at the time of sale.24 The quality of fertility could not be positively known by either party at the time the contract was formed.25
The plaintiff believed the cow could be made to breed while the defendants thought otherwise.26 The written contract was absolute with no attached conditions. Courts should not annul the contract by adding a rescission term based on later discovery of the cow's condition.
The judgments for the plaintiff should be affirmed because the error was one of judgment about the fertility of the cow rather than a known existing fact, and both parties took their chances on the animal's qualities.27