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 of Sherwood 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 wellsettled 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 http://ssrn.com/abstract=1223402).
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 https://connect.aals.org/p/do/sd/sid=1190&type=0).
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,
when Walker, 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
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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....
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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, September 1982)
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)
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- 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 Professor Snyder, 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.
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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
http://www.youtube.com/watch?feature=player_embedded&v=pjjRBAQ7ET8#!
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
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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 threeunit 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.
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But hold on. The actual holding in Lenawee County was that an “as is” clause in the
parties’ contract placed the risk of any unknown defect on the buyer. So regardless of any
mutual mistake, the buyers were not entitled to rescission. This makes the criticism of
Sherwood v. Walker dicta.
Notwithstanding, some casebook authors replaced Sherwood with Lenawee County. One
scholar pronounced Sherwood to be essentially “dead law.” And a limerick celebrating
Lenawee, by Professor Telman [29], began making the rounds:
The waste leaked in torrents, not trickles,
Now the property ain’t worth two nickels.
When “as is” you take,
You eat your mistake,
So bon appetite, Mr. Pickles.
(Journal of Legal Education, August 2011)
Yet in the 30 years since it was decided, Lenawee has failed to gain much ground on
Sherwood v. Walker. In the 2008 edition of Professor Dawson’s popular law school
casebook (carried on by others since his death in 1985), Sherwood is still reprinted in full,
replete with a photo of Hiram Walker and an unidentified Angus cow. A relatively brief
comment on Lenawee follows.
The monumental encyclopedia of contract law, Williston on Contracts, continues to pay
tribute to Rose. The 4th edition, published in 2003, devotes five pages to a discussion of
Sherwood v. Walker. Lenawee rates a single citation - under the heading “Septic and
sewer” cases.
Rose lives on!
In Michigan, it took nearly a quarter century for Rose to be resuscitated once again. The
vehicle was Ford Motor Co. v. Woodhaven, 475 Mich 425 (2006). Ford Motor Company
mistakenly double-reported some of its assets. The tax assessor relied on Ford’s reporting
in calculating the taxes due, and Ford paid the taxes it was billed for. Upon discovering the
error, Ford sought a refund under what it claimed was a mutual mistake of fact, one of the
statutory grounds for relief in tax disputes.
Ignoring Lenawee County completely, a unanimous Michigan Supreme Court declared
[30]: “Our review of our precedents involving the law of mistake indicates that the
peculiar and appropriate meaning that the term ‘mutual mistake of fact’ has acquired in our
law has not changed since Sherwood ... an erroneous belief, which is shared and relied on
by both parties, about a material fact that affects the substance of the transaction.” (Michael
F. Cavanagh, J.) Applying that definition to the facts before it, the court found that Ford
had stated a valid claim to recover excess taxes paid under a mutual mistake of fact.
Two years ago, in March of 2010, the Supreme Court again unanimously declared its
allegiance to “the seminal case of Sherwood v. Walker,” in Briggs Tax Service v. Detroit
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Public Schools, 485 Mich 69 (2010). Because these two most recent decisions were
unanimous, it is unlikely that they are in any jeopardy from the recent shifts in the high
court’s partisan majority.
Conclusion
In 1981, I had the pleasure of teaching Sherwood v. Walker to a law school class that
included John Engler [31], then a young state legislator. When the State Bar of Michigan
dedicated its Legal Milestone plaque commemorating Rose’s case in 1993, Michigan’s
then-Governor Engler issued a proclamation [32]. It concluded with this statement: “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.” I submit
that he learned his lessons well.
University of Michigan law professor James J. White [33] in 2005 recalled in exquisite
detail how his Contracts professor had dealt with Sherwood v. Walker nearly 50 years
earlier:
I can still remember the Monday morning that we took up the doctrine of mistake in
Contracts class. After we had the normal Socratic discourse about the cases, Bob [UM law professor Robert J. Harris] set out his theory about how the cases should be
put together.... Being good obsessive, compulsive law students who yearn for
certainty, we eagerly wrote down his interpretation of these cases....
On Tuesday Bob commenced the class by saying...“Yesterday I told you that the cow
case was correctly decided; now I think it was not. Today I think the buyer not the
seller should have won.” You could smell the hostility in the air that day. If any of
us had a gun, we would have killed him. Our learning - so carefully put down on
Monday - was worthless and, worse, we feared Bob might disavow Tuesday’s analysis
on Wednesday.”
(Law Quadrangle Notes, Fall 2005)
Eventually White and his classmates came to love their Contracts professor -- aren’t happy
endings wonderful? -- and to respect him for showing them “the uncertainty and ambiguity
inherent in contract law.” In that sense, Sherwood v. Walker, despite its checkered
subsequent history, still remains, I believe, a great teaching vehicle.
Thank you [34].
* Numbers in brackets correspond to the numbered PowerPoint slides that accompany this
paper.
** The author is an emeritus professor at Thomas M. Cooley Law School in Lansing,
Michigan, where he taught Contracts and other subjects for three decades. He can be
contracted at stockmen@cooley.edu. An abbreviated version of this paper was presented at
the 2011 annual conference of the Michigan Academy of Science, Arts & Letters.
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