Sherwood v. Walker 66 Mich. 568, 33 N.W. 919 (Mich. 1887) Hiram Walker contracted to sell Sherwood a cow. The price suggested that both parties thought the cow was barren. But the cow turned out to be pregnant, and it is worth a whole lot more as a breeder. o If the cow had been barren, it's only worth its value in meat, only 1/10th the price of a breeder. After the contract had been signed, and the calf had been discovered, the Walker tried to back out of the contract. Sherwood sued for replevin (recovery of goods unlawfully taken). o Sherwood claimed that the title for the cow had already been passed, so the contract was. Walker claimed that the contract was executory and Sherwood had not been given title to the cow. The Trial Court ruled that the sale must proceed and found for the Sherwood. Walker appealed. The Appellate Court reversed the decision. o The Appellate Court found that in this contract there was a mutual mistake. Neither party properly assessed the true value of the cow. o The Appellate Court held that a contract may be rescinded if it was made in reliance upon a mutual mistake of fact. o Basically, the parties would not have made the contract if they had known that the cow was a breeder. This mistake affected the substance of the whole consideration and it must be considered that there was no contract to sell the cow as she actually was. The mistake was material to the value of the cow. If, for example, the cow was the wrong color or was missing an ear, that wouldn't affect the value of the cow, so it wouldn't make the contract void. This is true even if you really really wanted a brown cow with two ears. Project Wonderful - Your ad here, right now, for as low as $0 In a dissent, it was argued that a general sale does not imply warranty of any quality, or the absence of any. Since there was no warranty made in the contract, if things didn't turn out the way people expected, that's just the luck of the draw. The contract should still be enforced. This case is distinguished from cases like Beachcomber Coins, Inc. v. Boskett, and Wood v. Boynton, in that in this case, neither party ever thought that there was a possibility the cow was fertile. o This case did not involve conscious uncertainty. o Most Courts today almost never uphold mutual mistakes. The theory is that there is always a chance that you are wrong about a material fact of the contract. That's part of the risk of making contracts.