A real missed anniversary: Death of Hiram Walker, defendant in the case of Rose 2d of Aberlone

January 16, 2011

Another missed anniversary on January 12.

Detroit grocer Hiram Walker, founder of St. Mary's Church

Detroit grocer Hiram Walker, defendant in the case of Rose 2d of Aberlone, Sherwood v. Walker; it is one of the most famous contracts cases in American law. No photo of the cow was found.

Hiram Walker — yes, that Hiram Walker — died on January 12, 1899.  He was a Detroit grocer, and distiller, but dabbled in a lot of businesses.  Among those dabbles:  Land and cattle.

Every law student knows about Walkers dealing in one particular cow:  Rose 2d of Aberlone.

In addition to these notable accomplishments, Mr. Walker was also a cattle breeder and was party to a famous contracts case known as “The Pregnant-Cow Case.” (33 N.W. 919 (Mich. 1887).) According to the majority opinion, Walker agreed with Theodore Sherwood, a banker, to sell him a cow of distinguished ancestry known as “Rose 2d of Aberlone”. The price was $80, both parties believing Rose to be sterile. When Walker discovered that she was pregnant and worth between $750 and $1,000, he refused to deliver her. Sherwood sued and prevailed in the trial court, but lost on appeal. This case illustrates the contract law rules of rescission of contract by mutual mistake. Because both parties believed they were contracting for a sterile cow, there was a mutual mistake of fact, and therefore ground for rescission. However, the dissent in the case, written by Justice Sherwood, notes that Sherwood believed that Rose “might be made to breed” and purchased her on that chance.

Mutual mistake.  Rescission.  What law student doesn’t cram that case before the final?

Sherwood v. Walker 33 N.W. 919 (Mich. 1887).  The Pregnant Cow Case. (Short version here.  Is a full-text version available on-line for free?  History of the case from the Michigan Courts History site, here.) Fans of the Coen brothers’ True Grit may want to note it was a case in replevin.

No, the case did not settle the issues of replevin nor rescission.  We’re talking law, not the movies. “Thus and such is the law, except sometimes,” as our

When can a person get out of a contract?  When both parties are mistaken about key properties of the object of the contract, one party can back out.

The Michigan Supreme Court held that a party who has given apparent consent to a contract of sale may refuse to execute it, or may void it after it has been completed if the consent was founded, or the contract made, upon the mistake of a material fact—such as the subject matter of the sale, the price, or some collateral fact materially inducing the agreement—and this can be done when the mistake is mutual. Where the item actually delivered or received is different in substance from the thing bargained for and intended to be sold, there is no contract. However, if it is only a difference in some quality or accident, even though the mistake may have been the actuating motive to the purchaser or seller, or both, the contract remains binding. Where a cow was contracted to be sold upon the understanding of both parties that she was barren and useless for breeding purposes, and it appeared that such was not the case, the vendors had a right to rescind the contract, and refuse to deliver the property. The Cow Case has since received attention as, literally, a textbook example of contract law issues.  (Wallace D. Riley, President, Michigan Supreme Court Society)

Hiram Anderson, the defendant in Sherwood v. Walker, died 112 years ago, January 12.

The contract controversy rages on.

Comedians should be able to find many straight lines in that history.


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