Do short brief (intro, body, conclu), comprising the most important takeaways of this text. Just few notes please. Thank you very much. I am not goinng to use the tutor's work as my own.

CHAPTER @ THE AGREEMENT 2.01 Did the Parties Agree? If so, to What? SHERWOOD V. WALKER Supreme Court of Michigan 66 Mich. 568, 33 N.W. 919 (1887) Morse, I. Replevin for a cow. Suit commenced in justice's court. Judgment for plaintiif. . . . The defendants bring error. . . . # O The defendants reside at Detroit, but are in business at Walkewille, Ontario, and have a Farm at Greenfield, in \\Vnyne county, upon which were some blooded cattle Supposed to be barren as breeders. . . . The plaintiff is a banker living at Plymouth, in Wayne county. He called upon the defendants at Walkerville for the purchase of some of their stock, but found none there that suited him. Meeting one of the defendants afterwards, he was informed that they had a few head upon this Greeneld farm. He was asked to go out and look at them, with the statement at the time that they were probably barren, and would not breed. May 5, 1886, plaintiff went out to Greeneld and saw the cattle. A few days thereafter, he called upon one of the defendants with the view of purchasing a cow, known as "Rose 2d of Aberlone.\" After con- siderable talk, it was agreed that defendants would telephone Sherwood at his home in Plymouth in reference to the price. The second morning after this tall: he was called up by telephone, and the tenns of the sale were nally agreed upon. He was to pay five and one-half cents per pound, live weight, fty pounds shrinkage. He was asked 110w he intended to take the cow home, and replied that he might ship her fl'Dn'l King's cattle-yard. He requested defendants to conrm the sale in writing, which they did. . . . e a a On the twentyfirst of the same month the plaintiff Went to defend ants' farm at Greenfield . . . [to take delivery, and was informed by the manager, Graham] that the defendants had instructed him not to deliver the cow. Soon after, the plaintiff tendered to Hiram Walker, 2.] {P ubJOQl 135 2-2 CONTRACTS: THEORY AND PRACTICE one of the defendants, $80, and demanded the cow. Walker refused to take the money or deliver the cow. The plaintiff then instituted this suit After he had secured possession of the cow under the writ of replevin, the plaintiff caused her to be weighed by the constable who served the writ, at a place other than King's cattle-yard. She weighed 1,420 pounds. The defendants . . . introduced evidence tending to show that at the time of the alleged sale it was believed by both the plaintiff and themselves that the cow was barren and would not breed; that she cost $850, and if not barren would be worth from $750 to $1,000; that after the date of the letter, and the order to Graham, the defendants were informed by said Graham that in his judgment the cow was with calf, and therefore they instructed him not to deliver her to plaintiff, and on the twentieth of. May, 1886, telegraphed to the plaintiff what Graham thought about the cow being with calf, and that consequently they could not sell her. The cow had a calf in the month of October following. It appears from the record that both parties supposed this cow was barren and would not breed, and she was sold by the pound for an insignificant sum as compared with her real value if a breeder. She was evidently sold and purchased on the relation of her value for beef, unless the plaintiff had learned of her condition and concealed such knowledge from the defendants. Before the plaintiff secured possession of the animal, the defendants learned that she was with calf, and therefore of great value, and undertook to rescind the sale by refusing to deliver her. The question arises whether they had a right to do so. The circuit judge ruled that this fact did not avoid the sale, and it made no difference whether she was barren or not. I am of the opinion that the court erred in this holding. I know that this is a close question, and the dividing line between the adjudicated cases is not easily dis- cerned. But it must be considered as well settled that 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 (Pub.209) 136THE AGREEMENT ] 2-3 mistake is mutual.) 1 Benj. Sales, $$ 605, 606; Leake, Cont. 339; Story, Sales (4th ed. ), $$ 148, 377. . .. 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 sub- stance of the whole consideration." Kennedy v. Panama etc., Mail Co., L.R. 2 Q.B. 580, 588. It has been held, in accordance with the principles above stated, that where a horse is bought under the belief that he is sound, and both vendor and vendee honestly believe him to be sound, the purchaser must stand by his bargain, and pay the full price, unless there was a warranty. It seems to me, however, in the case made by this record, that 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. It is true she is now the identical animal that they thought her to be when the contract was made; there is no mistake as to the identity of the creature. Yet the mistake was not of the mere quality of the animal but went to the very nature of the thing. (A barren cow is substantially a different creature than a breeding one. There is as much difference between them for all purposes of use as there is between an ox and a cow that is capable of breeding and giving milk.) If the mutual mistake had simply related to the fact whether she was with calf or not for one season, then it might have been a good sale; but the mistake affected the character of the animal for all time, and for her present and ulti- mate use. She was not in fact the animal, or the kind of animal, the defendants intended to sell or the plaintiff to buy. She was not a barren (Pub.209) 1372~4 C} CONTRACTS: THEORY AND PRACTICE " cow, and, if this fact had been known, there w0uld have been no con- :7 tractlThe mistake aHected the substance of the whole consideration, 5' ,_ and it must be considered that there was no contract to sell or sale 5,133) of the cow as she actually was-The thing sold and bought had in fact .19 3:? no existence. She was sold as a beef creature would be sold; she is in Us; fact a breeding cow, and a valuable one) :5\" The ecurt should have instructed the jury that if they found that the cow was sold, or contracted to be sold, upon the understanding of . 61'4\" both parties that she was barren, and useless for the purpose of ., f9; a; breeding, and that in fact she was not barren, but capable of breeding, 7?: 22.?) Qhen the defendants had a right to rescind, and to refuse to deliver, and 3.1355)";- the verdict should be in their favor.)l {it if The judgment of the c0urt below'must be reversed, and a new trial granted, with costs of this Court to defendants. CAMPBELL, C. ]., and CHAMPLIN, 1.. concurred, , Al SHERWOOD, ]. (dissenting). I do not concur in the opinion given by fo'bu my brethren in this case. . . . In the spring of 1886 the plaintiff, learning that the defendants had ' some \"polled Angus cattle" for sale, was desirous of purchasing some of that breed, and, meeting the defendants, or some of them, at Walker- ville, inquired about them, and was informed that they had none at Walkerville, \"but had a few head left on their farm in Greeneld, and they asked the plaintiff to go and see them, stating that in all proba- bility they were sterile and would not breed.\" In accordance With said request, the plaintiff, on the fifth day of May, went out and looked at the defendants' cattle at Greeneld, and found One called "Rose 2d,\" which he wished to purchase, and the terms were nally agreed upon at ve and one-half cents per pOund, liva weight, 50 pounds to be deducted for shrinkage. The sale was in writing, and the defendants gave an order to the plaintiff directing the man in charge of the Green- field farm to deliver the cow to plaintiff. This was done on the fifteenth of May. On the twentyrst of May plaintiff went to get his cow, and the defendants refused to let him have her; claiming at the time that the man in charge at the farm thought the cow was with calf, and, if such was the case, they would not sell her for the price agreed upon. The record further shows that the defendants, when they sold the cow, believed the cow was not with calf. and barren; that from what (Pub.209l 138 THE AGREEMENT 1:] 2-5 the plaintiff had been told by defendants (for it does not appear he had any other kn0wledge or facts from which he could form an opinion) he believed the cow was farrow, but still thought she could be made to breed. The foregoing shows the entire interview and treaty between the parties as to the sterility and qualities of the cow sold to the plaintiff. The cow had a calf in the month of October. There is no question but that the defendants sold the cow represent- ing her of the breed and quality the believed'the cow to be, and 2/ that the purchaser so understood it. \\'And the buyer purchased her 15'"; behaving her to be of the breed represented by the sellers, and pos- 3?.\" ,Q' sessing all the qualities stated, and even more. He believed she would ' breed. There is no pretense that the plaintiff bought the cow for beef, and there is nothing in the record indicating that he would have bought her at all only that he thought she might be made to breed. [Under the foregoing facts,and these are all that are contained in the 2 record material to the co-ntract,it is held that because it turned cut if": that the plaintiE was more correct in his judgment as to one quality \\Ca we of the cow than the defendants, and a quality, too, which could not "'l by any possibility be positively known at the time by either party to ; .. exist, the contract may be annulled by the defendants at their pleasure. . I know of no law, and have not been referred to any, which will " justify any such holding, and I think the circuit judge was right in his construction of the contract between the parties. It is claimed that a mutual mistake of a material fact was made by the parties when the contract of sale was made. There was no warranty in the case of the quality of the animal. 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, neither party knew of it, or could know of it; and that is precisely this case. If the owner of a Hambletonjan horse had speeded him, and was only able to make him i go a mile in three minutes, and should sell him to another, believing that was his greatest speed, for $300, when the purchaser believed he could go much faster, and made the purchase for that sum, and a few days thereafter, under more favorable circumstances, the horse was driven a mile in 2 min. 16 sec, and was found to be worth $20,000, I hardly think it worild be held, either at law or in equity, by any one, (131133.209) ,. 1" IT 139 2'6 [:1 CONTRACTS: THEORY AND PRACTICE that the seller in such case could rescind the contract. The same legal . principles apply in each case. in this case neither party knew the actual quality and condition of this cow at the time of the sale. The defendants say, or rather said, to the plaintiff, "they had a few head left on their farm in Greeneld, and asked plaintiff to go and see them, stating to plaintiff that in all probability they were sterile and would not breed." Plaintiff did go as requested, and fOund there three cows, including the one purchased, with a bull. The cow had been exposed, but neither knew she was with calf or whether she would breed. The defendants thought she would not, but the plaintiff says that he thought she could be made to breed, but believed she was not with calf. The defendants sold the cow for what they believed her to be, and the plaintiff bought her as he believed she was, after the statements made by the defendants, _\\lo conditions whatever were attached to the terms of sale by either party. It was in fact as absolute as it could well be made, and I know of no precedent as authorityuby which this Court can alter the c0n- tract 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. ' ' hit is not the duty of c0urts to destroy contracts when called upon to enforce them, after they have been legally madelehere was no mistake of any such material fact by either of the parties in the case as would license the vendors to rescind. There was no difference between the parties, nor misapprehension, as to the substance of the thing bargained for, which was a cow supposed to be barren by one party, and believed not to be by the other. As to the quality of the animal, subsequently developed, both parties were equally ignorant, and as to this each party took his chances. 'If this were not the law, there would he no safety in purchasing this kind of stock. I entirely agree with my brethren that the right to rescind occurs .x, whenever \"the thing actually delivered or received is different in . .psubstance from the thing bargained for, and intended to be sold; but ' if it be only a difference in some quality or accident, even though the misapprehension may have been the actuating motive\" of the parties cow sold was the one delivered, What might or might not happen to her after the sale formed no element in the contract. ...... [Pubr209) in making the contract, yet it will remain binding. In this case the' 140 scribes a defective car as a \"honey," a \"dandy,\" \"the pride of the line,\" "a best buy," \"a good little car,\" or the like. A court may dso nd that such statements are not \"material\" and deny re- covery on that basis. Note, however, that the more specic the seller's talk becomes, the more likely a court may he to interpret the statement as a fact (that is, knowledge as opposed to opinion) support- ing a fraud action. Therefore, a statement that the car is \"mechanically perfect\" or \"in A] condi- tion\" may result in liability if the car is not as rep resented.6 _ Outside the pufng case, misrepresentations of opinion can support fraud actions. A person's opin- ion is a facther state of mind. In pufng situ~ ationsiecovery is denied not because the opinion is true, biit because the law does not protect those who rely upon it. Reliance is often justied upon opinions rendered under the circumstances outlined below. In the preceding discussion, the parties are as sumed to be on an equal footing concerning the information and knowledge forming the basis of the opinion. A party may, however, assert an opinion conceming facts that are not disclosed or otherwise known to the other. Such an opinion, in certain cir cumstances, includes an implied representation that the maker knows facts that are sufcient to justify the opinion; or at least that he knows no facts in- consistent with it. In other words, when the parties do not possess equal information, the statement of opinion may include an implied representation of facts sufcient to support the opinion or belief. This implied representation is particularly strong when the person rendering the opinion possesses special skill, knowledge, or judgment concerning the subject matter not possessed by the other. Thus, a misstatement of opinion by an expert may be grounds for a fraud action if the facts known to the expert do not justify the opinion. For example, An 6. Under the UCC 2-3l3(l)(a), any u'irmation offact or promise that relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods will conform to the afrmation or promise. Thus, even if the seller's false statements of fact do not result in fraud liability (for ex~ ample. they were not made with knowledge of falsity), the seller may be liable to the buyer for breach of express warranty. War- ranties are covered in Chapter 19. drew, who knows nothing about jewelry, employs Joanne, a jeweler, to appraise an antique diamond ring that Andrew is considering purchasing. Joanne states that, in her opinion, the ring is worth $1,000. In this case, Joanne is expressing more than her personal belief. In giving her opinion regarding the value of the ring, she is also giving a summary of information she has concerning the qualities and characteristics of diamonds affecting their value, as compared to the qualies of this particular ring. Thus, the statement of the jeweler is both an expression of her opinion and a conclusion of fact. The conclusion is that she has the kind of infor- mation that would justify a reasonable expert in be- lieving that the ring is worth $1,000. If she does not possess this information, either because she has not examined the ring or has intentionally under- stated or overstated its value, her false opinion may subject her to liability for fraud. Therefore, when an opinion is rendered by an expert necessarily re- quiring a conclusion of fact supporting the opinion, the party without the special skill or expertise is entitled to rely upon the honesty of the expert's opinion and attach to it the importance warranted by the other's superior competence. Note that lie- bility is imposed here on the basis of the dtjj'erence in the information possessed by the respective par- ties. In the following classic case, the court was re quired to determine whether fraud liability should be imposed for a misrepresentation of opinion. Voices v. Arthur Murray, Inc. 212 Sc.2d 905 (Fla. App. 1968) Plaintiff Audrey E. Voices, a fty-oneyear-old widow without family who wanted to become an \"accomplished dancer," attended a dance party at a school of dancing operated by defendants J. P. Dav- enport and Arthur Murray, Inc. Following the dance party, plaintiff Voices purchased eight onehalfhour dance lessons for $14.50. Over a period of less than - sixteen months, plaintiff agreed to purchase 2,302 hours of dancing lessons through fourteen dance courses for a total sales price of $31,090,145. Defen- dant Davenport and his teaching associates induced plaintiff to purchase the dancing lessons by a \"coir 141 it I stem and continuous barrage of attery, false praise, excessive compliments and panegyric encomlums." As a part of various sales promotions, Davenport encouraged Vokes to purchase additional hours of iessons to achieve rst the dance studio's \"Bronze Medal," then the \"Silver Medal,\" and nally the "Gold Medal.\" Vokes sued for fraud requesting the court to de clare the contracts to be null and void. The trial court dismissed the complaint. Vokes appealed. Pierce, Judge . . . All the . . . sales promotions, illustrative of tie entire fourteen separate contracts, were pro- , ~"-rcd by defendant Davenport and Arthur Murray, c.. by false representations to [Vokes] that she as improving in her dancing ability, that she had excellent potential, that she was responding to in- structions in dancing grace, and that they were de- veloping her into a beautiful dancer, whereas in truth and in fact she did not develop in her dancing ability, she had no \"dance aptitude,\" and in fact had difculty in \"hearing the musical beat." . Defendants contend that contracts can only be rescinded for fraud or misrepresentation when the alleged misrepresentation is as to a material fact, rather than an opinion, prediction or expectation, and that the statements and representations set forth at length in the complaint were in the category of "trade pufng," within its legal orbit. It is true that "generally a misrepresentation, to be actionable, must be one of fact rather than of opinion". [Tonkovich v. South Florida Citrus In- dustries, Inc\" 185 So.2d 710 (Fla. App. 1966).] . . . But this rule has signicant qualications, ap plicable here. It does not apply where there is a duciary relationship between the parties, or where dtere has been some artice or trick employed by the representor, or where the parties do not in gen eral deal at \"arm's length\" as we understand the cheese, or where the representee does not have , ual opportunity to become apprised of the truth falsity of the fact represented. . . . As stated . . . in anel v. Citasebmok Construction Com ;*.:':_\\' [135 Sold 876, 879 (Fla. App. 1961).]: I r' P 1 . . A statement of a party having . . . superior isnowledge may be regarded as a statement of fact Fraud (Deceit) and Misrepresentation 249 although it would be considered as opinion if the parties were dealing on equal terms. It could be reasonably supposed here that defen- dants had \"superior knowledge\" as to whether plaintiff had \"dance potential" and as to whether she was noticeably improving in the art of terpsich~ ore. And it would be a reasonable inference from the undenied avennents of the complaint that the flowery eulogiums heaped upon her by defendants as a prelude to her contracting for 1944 additional hours of instruction in order to attain the rank of the Bronze Standard, thence to the bracket of the SilverStandard, thence to the class of the Gold Bar Standard, and nally to the crowning plateau of a Life Member of the Studio, proceeded as much or more from the urge to \"ring the cash register\" as from any honest or realistic appraisal of her danc- ing prowess or a factual representation of her prog- ress. Even in contractual situations where a party to a transaction owes no duty to disclose facts within his knowledge or to answer inquiries respecting such facts, the law is if he undertakes to do so he must disclose the whole truth. . . . From the face of the complaint, it should have been reasonably apparent to defendants that her vast outlay of cash for the many hundreds of additional hours of in- struction was not justied by her slow and awk- ward progress, which she would have been made well aware of if they had spoken the \"whole truth." . . . In our view, from the showing made in her COl'll- plaint, plaintiff is entitled to her day in Court. [Judgment reversed] X -4, . _ Misrepresentaons of Law. Early courts stated, as a general rule of law, that in cases involving fraud, everyone is presumed to know the law, and, there- fore, cannot be deceived by a misrepresentation of it. Under this approach, no fraud liability can result from a misrepresentation of law. The rule is appar ently an extension of the principle that ignorance of the law is not a defense in a criminal prosecution. As the following discussion indicates, the modern approach is to treat misrepresentations of law in the same manner as any other misrepresentation. 142