1887 : Michigan Supreme Court Accepts Case Concerning the Sale of Rose (A Pregnant Cow)

July 7, 2018 all-day

July 7, 1887 : Pregnant Cow Case Filed

When you run a grain mill/distilling/vertical integration empire, you’re always looking for news ways to make money from existing resources. And one thing that booze production creates a lot of is spent grain. Hiram Walker, like many a distiller for untold generations before him, raised cattle, because the spent grain was a cheap and profitable way to fatten up the cows.

Enter The Rose of Aberdeen, “a beautiful creature, with a handsome figure, small limbs and dreamy eyes,” according to court reporters. Rose (as we’ll affectionately call her), was pretty but barren. Walker sold her to T.C. Sherman of Plymouth for a discounted rate. Once the money was handed over, though, Walker’s agents discovered that Rose was pregnant. Scandal! Of course, a pregnant fancy cow was obviously more valuable than a barren fancy one, so Walker wasn’t willing to let her go for a mere $80. Now he wanted somewhere in the neighborhood of $750 to $1000. Sherman, having already forked up the agreed price, was miffed. Bring on the lawyers. This Immaculate Cowception case dragged on for the entirety of 1887, and eventually landed in the Michigan Supreme Court.

Lawyer-type people swear to me that this case is STILL taught in first year law as an example of something called “contract void by mutual mistake.” Translation: If both parties are truly mistaken in their initial estimation of an asset’s value and the property has not yet exchanged hands, then the contract is voided. So, Walker kept Rose and returned Sherman’s money, and now we all know a little bit more about Michigan contract law than we expected to.

Cited case: Sherwood v. Walker, 66 Mich. 568, 33 N.W. 919 (Mich. 1887) wikipedia entry

Mickey Lyons, “Walker in a Whisky Wonderland 2: A Pregnant Cow and Those Bogus Frauds“, Prohibition Detroit, March 29, 2017.

But wait there’s more:

According to Otto Stockmeyer, neither the parties, the cow, nor the beliefs of the parties were as they seemed.

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 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.”

And to top that off, Michigan lawyers have even dedicated a plaque in honor of the case.

Roberta M. Gubbins, “Mutual Mistake, the True Story of Rose of Aberlone – Otto Stockmeyer the truth of Sherwood v. Walker”      Ingham County Legal News, November 4, 2010.

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