Sherwood v. Walker

66 Mich. 568, 33 N.W. 919 (1887)



A contract may be rescinded if there was a mutual mistake as to the substance of the agreement.


Plaintiff contracted to buy a cow from defendant for a sum to be determined after the cow was weighed. When defendant refused to deliver the cow, plaintiff brought a replevin action, arguing that title had passed. The defendant had believed the cow to be barren, but later learned the cow was pregnant, and thus worth a lot more. Judgment was entered for plaintiff, and defendant appealed.


Was there a mutual mistake in the apprehension of facts that permits either to rescind the contract?




This fact was a material issue and went to the substance of the contract. Where there was mutual mistake as to the substance of the contract, defendant had a right to rescind. The mistake or misapprehension of the parties went to the whole substance of the agreement. If the cow was a breeder, she was worth at least $ 750; if barren, she was worth not over $ 80. The parties would not have made the contract of sale except upon the understanding and belief that she was incapable of breeding, and of no use as a cow. 

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