Sherwood v. Walker

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Sherwood v. Walker
Court Michigan Supreme Court
Full case name Theodore C. Sherwood v. Hiram Walker et al.
Decided July 7, 1887
Citation(s) 66 Mich. 568, 33 N.W. 919 (Mich. 1887)
Court membership
Judges sitting James V. Campbell
John W. Champlin
Allen B. Morse
Thomas R. Sherwood
Case opinions
Decision by Allen B. Morse

Sherwood v. Walker, 66 Mich. 568, 33 N.W. 919 (Mich. 1887), is a case that played an important role in the evolution of American contract law involving the doctrine of mutual mistake. The parties in this case were mutually mistaken with regard to the barren nature of a cow.[1][2] The case is a staple of first-year law school contract law class discussions and text books [3][4][5] and has been briefed extensively online.[6][7][8]


This case was an action in replevin for possession of a cow of the polled Angus cattle variety which were most commonly used for the production of beef as opposed to dairy products. The suit was originally brought in justice's court, a state court within the jurisdiction of Michigan, and appealed to the circuit court of Wayne County, Michigan.

The subject matter of the case, which was heard on appeal to the Michigan Supreme Court setting out 25 assignments of error, involved a transaction between Hiram Walker, an importer and breeder of polled Angus cattle (and grocer and distiller), and Theodore Sherwood, a farmer and banker from Plymouth, Michigan. Sherwood sought to purchase cattle. On May 5, 1886, Sherwood called upon Walker at his farm and adjacent pasture land in Walkerville, Ontario but did not find a cow that suited him after which Walker invited him to visit his farm in Greenfield, Michigan where he kept a few head of cattle that were "probably barren, and would not breed."

A few days after visiting Walker's farm, Sherwood informed Walker that he wished to purchase the cow known as "Rose 2d of Aberlone" and the parties agreed upon a price of 5​12 cents per pound live weight, a price much less than the value of a fertile cow. Soon thereafter Walker discovered that the cow was in fact with calf and not barren as the parties had believed when they made their agreement and when Sherwood returned to the farm several days later, Walker refused to accept payment or deliver the cow which subsequently prompted Sherwood to bring suit against Walker; during the lawsuit Sherwood had taken possession of the cow by writ of replevin.

The appeal was heard in 1887 by the Supreme Court of Michigan in which Walker asserted in his defense that he claimed that both parties had been mistaken as to the nature of the cow regarding whether it was barren or fertile and able to bear calves and that therefore there was no contract and further testified at trial that he had mistakenly agreed to sell the cow at the price of a barren cow which in this case was $80 but because the cow was in fact with calf, however, the cow was actually worth between $750 and $1000. The issue was, (under Michigan contract law) whether or not the defendant (Walker) could refuse to sell the cow because the parties did not know that the cow was actually fertile at the time they struck their bargain.


The court held that if both parties thought the cow was barren (which was a question for the jury), the contract was voidable on grounds of mutual mistake, reasoning by using the traditional test of the mistake "relating to the substance of the consideration." In other words, because both parties were mistaken, the consideration failed for the cow as she actually was a cow, not a barren animal or heifer.

See also[edit]