Presentation to the 7th International Conference on Contracts
Thomas Jefferson School of Law, San Diego CA
March 3, 2012
On the Road Again: A Trip Through the Poetry and Checkered Subsequent History ofSherwood v. Walker[1]*
Norman Otto Stockmeyer, Thomas M. Cooley Law School**
Introduction
“We are a nation of laws.” When most people hear that statement, they probably think of legislators passing legislation, or high court judges expounding the common law.
But there is another, much larger group of lawmakers: all of us. Whenever we enter into a contract [2], we are making a “private law” to govern our relationship; a law that the courts will enforce, if necessary. Contracts are everywhere: agreements to buy, sell, or lease land or goods are contracts. Mortgages, loans, and credit-card agreements are contracts. So, too, are insurance policies and storage-facility leases.
Imagine a world where courts stopped enforcing contracts. There would be a complete breakdown in commerce. Americans would be unable to buy, finance, insure, or store their possessions with any assurance that their rights would be protected.
And yet courts do not enforce all contracts. For example, contracts that are the product of fraud are voidable by the victim. Likewise, a contract induced by wrongful physical, psychological, or economic duress is subject to avoidance. Courts must strike a balance between protecting legitimate contract expectations and policing against contract wrongdoing.
What if a contract was the product of a mistake? [3] Neither party is guilty of any wrongdoing, yet the contract was not about what the parties supposed. Should a court enforce it?
That is where Sherwood v. Walker, 66 Mich 568 (1887) fits into the body of our law. It “wrote the book” on the law of mutual mistake. In 1985, American Heritage magazine picked it as one of “Five Classic Cases” [4] that every law student must know. [5] In Plymouth, Michigan, the home of one of the parties to the lawsuit, the State Bar of Michigan in 1993 erected a Legal Milestone plaque [6] commemorating the case as “one of the most celebrated contracts cases in American history.” Harvard law professor Jack Dawson [7] called it “the single most beloved law case at Harvard.”
Furthermore, the Michigan Supreme Court Historical Society in 2003 included Sherwood v. Walker in its listing of the court’s 20 most significant cases. In “Sherwood v Walker: Cows and Contracts” (Michigan Bar Journal, January 2009 supp.), Hillsdale College professor Paul Moreno [8] noted, however, that over the years the Michigan Supreme Court has exhibited profound ambivalence toward what may be its most famous decision. Twice the high court stripped the case of its legal authority, only to later embrace it again as well-settled precedent.
I wrote about the Sherwood case in the 2007 Cooley Law Review (“To Err is Human, To Moo Bovine: The Rose of Aberlone Story,” available at The article became the basis for a presentation at the 2010 Conference on Contracts in Las Vegas (“A Virtual Roadtrip Through Sherwood v. Walker,” [9] available at the AALS members website
Two years ago, due to time constraints, I was not able to delve into the delightful cache of poetry that the case has generated, or explore its convoluted subsequent history at the hands of the Michigan Supreme Court. This paper completes the Sherwood saga by filling those gaps.
Sherwood v. Walker
First, a recap of the Sherwood case itself. In May of 1886, Theodore Sherwood of Plymouth [10, left] entered into a contract to purchase a cow with the fancy name of “Rose 2d of Aberlone” from Hiram Walker [right] of Detroit. Because they believed that the cow was barren, it was sold as beef for 5½ cents a pound. The price amounted to $80. Later, whenWalker,the seller, learned that the cow was expecting a calf (and, as such,was worth as much as $1,000), he tried to back out of the deal. Sherwood, the buyer, sued him to enforce the contract. He won at trial, but the verdict was reversed on appeal.
The bronze letters on the Legal Milestone plaque summarize the decision of the Michigan Supreme Court this way [11]: “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.” Justice Allen B. Morse [12] wrote the majority opinion.
The elements of the mutual-mistake defense, as seen by Justice Morse, were essentially these: there must have been a mistake (generally defined as an erroneous belief), it must be mutual (shared by both parties), and it must go to the substance of the transaction (and not merely some collateral matter). To Justice Morse, “a barren cow is substantially a different creature than a breeding one.”
Justice Thomas R. Sherwood [13] (no relation to the buyer) wrote a strong dissent. Significantly, he “entirely agreed” with the rule that a mutual mistake, going to the substance of a contract, confers a right to rescind. But he disagreed with the majority’s application of the rule. He denied that there was any mistake as to the substance of the cow, and he challenging the majority’s conclusion that the buyer believed that the cow was barren. Justice Sherwood believed that the parties were equally ignorant as to the cow’s capacity to breed, “and as to this each party took his chances.”
Some commentators have opined that Justice Sherwood’s interpretation of the facts is the more credible. University of Michigan law professor George Palmer [14] was among them. In his 1962 book, Mistake and Unjust Enrichment, he wrote: “I find it most difficult to accept the statement of the majority of the court that the buyer, Sherwood, shared the mistake.... The whole sense of the matter suggested that...he thought there was a chance that Rose 2d would breed.”
Students often harbor the same suspicion. One former Contracts student was so “worked up” over the decision that she wrote me a long note saying that the author of the majority opinion must never have owned cattle. “All breeders know that there is always a chance that if a cow is left with a bull (as Rose was) it could produce a calf.... Plaintiff could not have wanted the cow for meat ... because you don’t buy a cow for meat – you buy a steer. And you certainly don’t spend your time shopping around in herds to pick one out – the first plump one will do.”
But what critics of the case neglect to note is that, ultimately, Justice Morse was not deciding whose version of the facts made better sense. Rather, he decreed that because the trial judge had failed to instruct the jury on the law of mistake, a new trial must be had [15]: “The court should have instructed the jury that if they found that the cow was sold, or contracted to be sold, upon the understanding of both parties that she was barren, and useless for the purpose of breeding, and that in fact she was not barren, but capable of breeding, then the defendants had a right to rescind, and refuse to deliver, and the verdict should be in their favor.”
Thanks to research cited in Professor Moreno’s article, we now know that in the second trial the jury found in favor of the buyer [16]. Yes, Rose ended up with Theodore Sherwood, for whom she eventually produced five more calves, according to diligent research into cattle registry records by Texas Wesleyan law professor Frank Snyder [17].
That the wise jurists on the Michigan Supreme Court could not agree on whom to believe surely is grounds enough to leave the fact-finding to a properly instructed jury.
The torrent of poetry and song
Being the most sympathetic character in the case, Rose has become much celebrated in verse. The most widely published poem is that of UCLA law professor Brainerd Currie, which first appeared in the Harvard Law School Record in 1954 and has been reprinted several times in other legal publications [18]. The 350-line epic concludes with a scene that generations of law students can recall:
Tis the middle of the night before the exam,
And there’s nothing to eat but a cold bit of ham...
Mark how the eager students cram.
A dismal specter haunts this wake –
The law of mutual mistake;
And even the reluctant drone
Must cope with Rose of Aberlone.
She rules the cases, she stalks the page
Even in this atomic age....
In many a hypothetical
With characters alphabetical,
In many a subtle and sly disguise
There lurks the ghost of her sad brown eyes.
That she will turn up in some set of facts is
Almost as certain as death and taxes:
For students of law must still atone
For the shame of Rose of Aberlone.
(Harvard Law School Record,March 4, 1954)
Here’s an anonymous postscript in praise of Currie’s opus:
Kudos; yea kudos! Let us intone
A tribute to the Bard of Aberlone.
A professor with humor, demeanor poetic,
A preacher of topics, fine and noetic.
Ye students of Pound, Marshall and Story
Forget not Currie, his verse and his glory.
Raise your flagons aloft, and drink ye a toast,
To a cow that’s a cow, instead of a roast!
Yes, Sherwood v Walker became “the single most loved law case at Harvard” due to Currie’s poem and the delight that Professor Dawson, a native Detroiter by the way, took in teaching the case to generations of Harvard law students. But some anonymous law students at the University of Iowa (who might know a thing or two about cows) were not impressed with Currie’s poem, according to this response:
My Wild Iowa Rose
Unlike another, my rhyme is terse:
Your name, Oh Rose, is under curse.
I can think of nothing worse
Than to suffer through the Harvard verse ....
(There are more stanzas in the Journal of Legal Education, September1982)
Other tributes to Rose’s fertility include these three limericks, the first by Indiana University law professor Douglass G. Boshkoff, the second by Valparaiso University law professor Jeremy Telman, and the third by an unknown author:
We’ve all heard the story of Rose [19]
Whose failure to bear was a pose.
“For the stew pot, I’m not,”
Said Rose, like a shot.
And she wasn’t, as everyone knows.
(Northwestern University Law Review, Fall 1996)
- and -
Because of a mutual mistake, [20]
Poor Rose was thought of as steak.
But the court did discover
Her essence was “lover”
So Sherwood made do with [a] milk shake.
(Journal of Legal Education, August 2011)
- and also -
For this beef-cow who carried a calf,
The 80-buck price was a gaffe.
The injustice moves us
And so, it behooves us
To say: Here’s a cow-and-a-half.
A longer poem comes from Widener law professor Alan Garfield [21], via the Southern Methodist University Law Review, Winter 2004:
I’ll tell you how a man with a cow had a cow
because his cow had a cow.
Here’s how:
The man with a cow had a cow
because he sold his cow for just chow.
How now?
He sold his cow just for chow
because he didn’t know his cow had a cow.
Had his cow had a cow it would have been worth a thou
and would not have been sold for just chow.
What now?
Well, the buyer said “Wow!”
The seller said “Yeow!”
And the court finally said “Come now!”
How can a cow with a cow worth a thou
sell like a cow just for chow?
Not never, and not now!”
So now you know how a man with a cow had a cow
Because his cow had a cow.
Then there are these lyrics, by ProfessorSnyder, to the tune of Bob Dylan’s [22] Just Like a Woman:
JUST LIKE A HEIFER
Now Sherwood needed a cow.
It’s not clear if for breeding, or for chow.
He went to Walker’s farm,
Thought there would be no harm –
But there he fell under Rose’s fatal charm
And he knew –
She’s the one.
CHORUS
She moos, just like a heifer
(Yes she does)
And she chews grass just like a heifer
(Yes she does)
And she woos bulls just like a heifer –
But she’s priced just like a side of beef ....
(The complete lyrics are on the Contracts Prof Blog for May 15, 2006)
The most recent addition to the Rose of Aberlone songbook is Stanford law professor Richard Craswell’s rendition of “My Rose (Sherwood v Walker)” on YouTube [23]. Go to
My favorite tribute to the case, which summarizes it fairly well in far fewer words, was on a note handed to me by a student after class one day. It read, simply:
To err is human,
To moo, bovine.
Justice Sherwood’s revenge
Less than a year after he failed to prevail in Rose’s case, Justice Sherwood (the dissenter) got his way in Nester v. Michigan Land & Iron Co., 69 Mich 290 (1888). Mr. Nestor bought a tract of pine timberland for $27,000. Upon harvesting, he found a large portion of the logs to be unsound. They yielded only about half the quantity of lumber that had been estimated by parties’ agents. The buyer refused to pay more than one-half the purchase price, on the ground that both parties were mistaken as to the quality of the timber. The trial judge agreed and ruled for the buyer. The Michigan Supreme Court reversed.
Writing for the Supreme Court, with Justice Morse not sitting, Justice Sherwood not only rejected application of Sherwood v. Walker, but also held that the Sherwood case should be limited to its facts.
University of California, Hastings law professor Charles Knapp explains that this way [24]: “Limiting a case to its facts instead of overruling it is like a sentence of house arrest instead of capital punishment. The case isn’t dead, but it’s not going anywhere, either.”
Aside from a desire to take a second shot at the majority opinion in Sherwood v. Walker with its author sidelined, there was no justifiable reason to attack the decision. Although both parties in Nester had estimates made by their agents, they knew that such estimates could not be made with any degree of certainty. Under these circumstances, the parties did not labor under a mistaken belief.
Rather, they knew that there was uncertainty. In the absence of a warranty, they should be held to their bargain. The law has long distinguished between mistaken belief and “conscious ignorance” (that is, where parties recognize the existence of uncertainty; what Donald Rumsfeld called a “known unknown”). In my view, Sherwood v. Walker simply did not apply.
Rose’s second life
Justice Sherwood’s revenge was short lived. Less than three years later, McKay v. Coleman, 85 Mich 60 (1891) came before the court. There the high bidder at an estate auction paid a non-refundable $100 deposit on a plot of land. Later, when the deed was tendered, the buyer refused to proceed.
The building on the property, believed by all parties at the time of sale to be entirely on the land sold, was in fact partly on other land. This greatly affected the value of the property. The buyer sued to recover his $100, but the trial court gave judgment for the seller.
In an opinion by Justice Claudius Grant [25], who had succeeded Justice Sherwood in 1890, the Supreme Court ruled unanimously for the buyer, saying: “This case is ruled by the principles laid down in Sherwood v. Walker [citation omitted]. There was a mutual mistake of fact as to the condition of the property.” Now, instead of being limited to its facts, Sherwood v. Walker established legal principles that must be followed in future cases having nothing to do with pregnant cows. Rose had been resuscitated.
Was it perhaps significant that while Justice Morse was still on the high court, Justice Sherwood had left office? Recall that in Nestor, with Morse sidelined, Sherwood v. Walker was limited to its facts. Now, with Morse voting and Sherwood gone, Sherwood v. Walker’s precedential value was restored. Rose [26] would rule for the next 90 years.
Lenawee County Board of Health v. Messerly
Rose suffered her second and more devastating blow in the case of Lenawee County Board of Health v. Messerly, 417 Mich 17 (1982). It involved the sale, for $25,000, of a three-unit apartment building situated on a 600 square-foot lot [27].
Unknown to either the buyers(Mr. and Mrs. Pickles) or the seller, a previous owner had installed the septic tank without a permit. The lot size was too small to support a legal septic system, rendering the property uninhabitable and virtually worthless. The buyers sought to rescind their purchase based on mutual mistake.
Writing for a unanimous Supreme Court, Justice James L. Ryan [28] agreed that the mistake was mutual, but he was troubled by the distinction in Sherwood v. Walker between a mistake that goes to the substance of the contract and one that is merely collateral. Finding the distinction “inexact and confusing,” he declared that the Sherwood holding was to be limited to the facts of the case.