January 24, 2007

A barren cat

by Sean Sirrine

I have to say that this guy might want to get in to a new line of work. His "impotent" male cat impregnated his "barren" female cat.

I'm sure most of you out there have read Sherwood v. Walker, also known as "the pregnant cow case." Sherwood v. Walker, 33 N.W. 919 (Mich. 1887). We just went over that case the other day in my Contracts class. The very same day a classmate of mine received this email from a list serve of the Oregon Women Lawyers:

A nice young man I currently represent has a case I cannot help with. He breeds amazing cats that go for over a $1,000. He had a female cat he "retired" because she was not getting pregnant. He sold her to someone in another state for $400, far less than the value of these cats because of cat's inability to breed. Turned out cat was pregnant and gave birth to 3 kittens while she was with new owner. New owner has not paid for mom cat yet. Client demanded cat and kittens back and instead received a letter from a lawyer with a $400 check for payment to mom cat.

So, what do you think? The pregnant cow case is still very much alive. (Even though I believe it was decided incorrectly.) This was my quick response:

I think this is cut and dry.

Under the Restatements whether the mistake is mutual or unilateral, the seller can only get out of the contract if the risk was not on him. (I think we can all agree that the mistake was adverse to him.) Sec 151 & 153.

Sec 154 (b) states that if the seller had limited knowledge, (which he must
have or he wouldn't have made the mistake), and treated that as sufficient he
bore the risk.

I think that clearly happened here.

Also, under Sec 154 (c) any court would find it reasonable to allocate the
risk to the seller.

The cat in this case could be sold at two prices; $400 or $1000. If sold at
$1000, the buyer implicitly takes on the risk that the cat cannot bear
kittens. At the $400 price the seller implicitly takes on the risk that the
cat may in fact bear kittens.

One or the other bears that $600 of risk. In this case it was the seller.

Then I received this response:

Actually the cat in question had a value of as much as $4,000. She was pregnant at the time of sale, and had been impregnated by a male cat thought to be impotent that was of breeding quality also owned by the seller. so assuming that all the kittens are also of breeding quality and capable of breeding, each is worth $1000.

Seems like the seller really made a big boo boo doesn't it? He took on even more risk than I originally thought. Also, he had complete control of the cat before shipping it off and could have had it checked to see if it could breed or if it was pregnant.

Like I said, it may be time to find a new line of work.

Frankly, if I were the buyer's attorney, I would have offered to send one of the kittens to the seller in order to mitigate any chance of litigation. Buyer still gets a windfall, but the seller is essentially made whole.

January 24, 2007 3:14 PM | TrackBack
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