Sherwood v. Walker

66 Mich. 568 (1887)


P asked to look at D’s stock but was informed that one of them was probably barren and would not breed. D was in the business, had a farm and was an importer and breeder of polled Angus cattle. P was a banker and farmer. D was a breeder of cattle. P saw the cattle and made an offer on 'Rose 2d of Aberlone'. The terms of the sale were agreed upon by telephone, and it was confirmed in writing. D sent a letter confirming the sale P tendered the monies due under the contract, but D refused to perform because the cow was not barren. P sued D. P got possession under a writ of replevin. At trial, P submitted his proofs and D moved to strike out and exclude that testimony from the case in that it was irrelevant, did not show that title had passed, and it showed that the contract was merely executory. The court refused that motion. D took exceptions. D then showed that at the time of the sale it was believed by both parties that the cow was barren and if not barren she would cost more. The judge instructed the jury that if they believed D when the order and letter to P was sent, it meant to pass title to the cow. If they believed that D intended to pass the title by writing, it did not matter whether the cow was weighed before or after suit and P would be entitled to recover. D submitted a number of requests, but they were refused by the court. The court also charged that jury that it was immaterial that the cow was with calf or not. The trial court gave the verdict to P; it did not matter that the cow was with calf or whether she was barren or not.