Sherwood v. Walker

Facts

The Walkers lived in Detroit, did business at Walkerville, Ontario, and kept a farm at Greenfield in Wayne county, where they had some blooded cattle supposed to be barren. They were importers and breeders of polled Angus cattle. Sherwood, a banker living at Plymouth in Wayne county, called on them to buy stock and was told they had a few head at Greenfield that were probably barren and would not breed. On May 5, 1886, he went out and saw the cattle. A few days later he called about buying a cow known as Rose 2d of Aberlone, and the terms were settled by telephone: five and one-half cents per pound, live weight, fifty pounds shrinkage. On May 15, 1886, the Walkers confirmed the sale by letter and enclosed an order directing their man Graham to deliver the cow at King's cattle-yard and to have her weighed. After the letter, Graham told the Walkers that in his judgment the cow was with calf, and they instructed him not to deliver her. When Sherwood presented the order and letter on May 21, Graham refused delivery. Sherwood tendered $80 to Hiram Walker, who refused the money and the cow. After Sherwood got the cow by writ of replevin, she weighed 1,420 pounds. The Walkers offered evidence tending to show that both sides had believed the cow barren and unable to breed. She had a calf that October.

Issues

1. Was it clear as a matter of law that title to the cow could not pass until she was weighed, or was the parties' intent under the letter and delivery order a question of fact for the jury?
2. Did a mutual mistake about whether the cow could breed give the sellers a right to rescind the sale?

Holding

Whether the letter and order passed title without prior weighing or payment was a question of the parties' intent for the jury, and submitting it was right. But the circuit judge erred in charging that it was immaterial whether the cow was with calf: if both parties understood she was barren and she was in fact capable of breeding, the mistake went to the substance of the agreement, and the sellers had a right to rescind and refuse delivery.