Mutual mistake, the true story of Rose of Aberlone -Otto Stockmeyer reveals the truth of Sherwood v Walker

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By Roberta M. Gubbins

Legal News

The lawyers attending the Ingham County Bar Association Luncheon Lecture on October 27th were treated to the story behind Michigan's most celebrated cow, Rose of Aberlone, her owners and their mutual mistake. Otto Stockmeyer, retired Cooley Law school professor, began the saga with these facts.

"More than a century ago," he said, "Theodore Sherwood of Plymouth entered into a contract to purchase a cow from Hiram Walker of Detroit. Because it was thought that the cow was barren, it was sold for beef. The price was 51/2 cents a pound, or about eighty dollars. Later, when Walker, (discovering that Rose was with calf) tried to back out of the deal, Sherwood sued him."

The resulting opinion, Sherwood v. Walker, (66 Mich.568, (1887) handed down by the Supreme Court of Michigan, became a legal classic, and is still studied by law students across the country. American Heritage magazine picked Sherwood v. Walker, as one of its "Five Classic Cases" that every law student must know. Additionally, in Sherwood's hometown, the State Bar of Michigan erected a Legal Milestone marker that recognizes the case as "one of the most celebrated contracts cases in American history."

"I've taught Contracts and Remedies for more than 30 years," Stockmeyer said, "and Sherwood v. Walker shows up in both courses: as a mistake case in Contracts and as a rescission case in Remedies."

The facts of the case, he said , are thus:

"The story begins in May of 1886 when Sherwood approached Walker about buying some of his stock of Angus cattle.

Walker told Sherwood that the cows were probably barren and could not breed. Sherwood picked out a cow with the fancy name of 'Rose 2d of Aberlone.' The parties agreed on the price and Walker confirmed the sale in writing.

When Sherwood later returned to Walker's farm to take delivery of the cow, Walker refused. By then he was suspecting that she was expecting, and could be worth as much as $1,000."

"Sherwood brought a replevin action before a Justice of the Peace to obtain possession of Rose, and he won. Walker appealed to Wayne County Circuit Court, where Sherwood won again. Meanwhile, Rose delivered a calf in October, thereby confirming Walker's suspicion."

"Determined not to lose his cow, Walker appealed again, this time to the Michigan Supreme Court. The high court overruled the lower courts. The bronze letters on the Legal Milestone plaque summarize the decision this way:

"Because a mutual mistake affecting the substance of the transaction had been made, Hiram Walker had a right to rescind the contract, and keep the cow."

As Stockmeyer indicated, neither the parties, the cow, nor the beliefs of the parties were as they appeared.

Theodore Sherwood was not a farmer but "made his living as president of the Plymouth National Bank. Two years after the Supreme Court's decision, Governor Cyrus Luce appointed Sherwood to be Michigan's first Banking Commissioner."

Hiram Walker, also not a farmer but "was at the time one of the Detroit area's most successful industrialists. In 1856, attracted by lax liquor laws and cheap land across the Detroit River, Walker purchased 468 acres of land 11/2miles upstream from Windsor for $40,000, and went into the liquor business. An innovative merchandiser, he was among the first distillers to brand his barrels, and the first to sell whisky in individual glass bottles with paper labels."

When a new U.S. law required that product labels identify the country of origin. Walker boldly added "Canadian" to his product's name. "Canadian Club" eventually became one of the most recognized brand names in the world.

"Rose was born January 8, 1881. She is not what one would think from reading the court's opinion. Her name was not Rose 2d of Aberlone, but Rose 2d of Aberlour since she was foaled at the Mains of Aberlour in Scotland.There was little reason to think she was barren. And despite the ruling in Walker's favor, she ended up with Sherwood.

"Records show," Stockmeyer said, "that Walker paid $850 for Rose, so selling her as "eighty-buck chuck" can only be explained by his belief that she was unable to breed. But was that belief justified? Here's a surprise: Rose had given birth to a calf three years earlier, in 1883, registered to Walker as the breeder. She did not calve in 1884 or 1885, but she had proven her breeding potential."

Stockmeyer revealed "another surprising fact. After the appeal was decided, on remand a circuit court jury again sided with Sherwood. Rose's five subsequent offspring list "T.C. Sherwood" as breeder. So despite having prevailed on appeal, Walker ultimately lost possession of his Rose."

"Sherwood v. Walker has been cited as legal authority in more than fifty court decisions, from New York to California. Judges have called it "celebrated," "classic," "leading," and, yes, "seminal. It remains one of the great contributions to contracts jurisprudence and law-school lore. The case is a part of Michigan history that is known to practically every living American lawyer and law student - and almost nobody else."

"I should add," Stockmeyer concluded, "that in 1993 Governor John Engler [39], another former student of mine, issued a proclamation of tribute to Rose's case. In it, the Governor rightly asserted that the case's significance transcends the misguided individuals involved in the dispute: "The details of this case are less important than the ruling, which remains as sound today as it was over a century ago. The principals are gone but the principle will never die."

Published: Thu, Nov 4, 2010

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