66 Mich. 568
Defendants appealed from a judgment of the Wayne County Circuit Court (Michigan) in favor of plaintiff in a replevin action.
-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.
-Judgment was entered for plaintiff, and defendant appealed.
The court reversed and ordered a new trial. While the court agreed with plaintiff that there were no conditions precedent to the passage of title, defendant could avoid the contract under the theory of mistake. Here, both parties believed the cow to be barren when they discussed the price, but it was later learned by defendant that the cow was pregnant, and therefore, worth a lot more. 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.
-Where the parties to a K for the sale of personal property are mutually mistaken as to a material fact which affects the substance of the whole consideration, the K is unenforceable.
- A party who has given an apparent consent to a contract of sale may refuse to execute it, or he may avoid it after it has been completed, if the assent was founded, or the contract made, upon the mistake of a material fact, such as the subject-matter of the sale, the price, or some collateral fact materially inducing the agreement; and this can be done when the mistake is mutual.
- If there is a difference or misapprehension as to the substance of the thing bargained for, if the thing actually delivered or received is different in substance from the thing bargained for and intended to be sold, then there is no contract; but if it be only a difference in some quality or accident, even though the mistake may have been the actuating motive to the purchaser or seller, or both of them, yet the contract remains binding.
- The difficulty in every case is to determine whether the mistake or misapprehension is as to the substance of the whole contract, going, as it were, to the root of the matter, or only to some point, even though a material point, an error as to which does not affect the substance of the whole consideration.
Judgment reversed and new trial granted on the grounds that defendant had right to rescind contract, because there was a mutual mistake as to the substance of the contract.
-It was in fact as absolute as it could well be made, and I know of no precedent as authority by which this Court can alter the contract thus made by these parties in writing, and interpolate in it a condition by which, if the defendants should be mistaken in their belief that the cow was barren, she should be returned to them, and their contract should be annulled.
-When a mistaken fact is relied upon as ground for rescinding, such fact must not only exist at the time the contract is made, but must have been known to one or both of the parties. Where there is no warranty, there can be no mistake of fact when no such fact exists, or, if in existence, [*581] neither party knew of it, or could know of it; and that is precisely this case.