Vail Daily column: Law is stories | VailDaily.com

Vail Daily column: Law is stories

A young friend of mine is attending law school in New England. I saw him twice over the holidays. I asked him how things were going.

"Law school is stressful," he said.

I asked, "How so?" It's been more than thirty years since I graduated from law school — on the west coast, not the east — and I've spent the last three-plus decades nine-to-fiving law.

"It's so intense. There so much to know. So much to understand. There's so much competition, so much pressure on you."

I thought about what he said for a moment and then I offered, "Law is stories."

He cocked his head like a spaniel wakened from a nap.

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"That's all you need to know," I went on. "Stories about people, about their lives, about their struggles. Every case you read, every client that will one day come through your door, has a story to tell. Without people and their stores there is no law. There might be rules but there'd be no law."

I could see that stopped him. He sucked a tooth. "Yeah?"

"You're 1-L," I said, "A first year law student."

"Uh-huh."

"Name a single case you've read this year that wasn't about people and their stories."

"Well there's. . ." And then he couldn't. "What," he stammered, "about Rose of Aberlone?"

"The barren cow case," I answered.

I could see that it had screwed up his courage.

"Did the cow bring suit?"

"Well. . ."

"Or," I asked, "was it a story about people?"

I looked him over and he looked back at me.

"Let's take that one," I offered. "Sherwood v. Walker, 1887. Contract law case. The doctrine of mutual mistake. Somethings never change. I had this case in 1-L about a hundred years ago."

He smiled weakly.

"The case was an action in replevin — and action for return of property — concerning the possession of a cow."

He nodded as if I'd pulled a jackalope out of a hat.

"The case involved one Hiram Walker — yes, that Hiram Walker when his fancy family crest was just beginning to blossom on a fifth of scotch—and involved a transaction between Walker and Theodore Sherwood, a farmer and banker from Plymouth, Michigan. Sherwood sought to purchase cattle. On May 5, 1886, Sherwood called upon Walker at his farm and adjacent pasture land in Walkerville, Ontario but did not find a cow that suited him after which Walker invited him to visit his farm in Greenfield, Michigan where he kept a few head of cattle that were "probably barren, and would not breed."

"A few days after visiting Walker's farm, Sherwood informed Walker that he wished to purchase the cow known as "Rose 2d of Aberlone" and the parties agreed upon a price of 51/2 cents per pound live weight, a price much less than the value of a fertile cow.

"Soon thereafter, Walker discovered that the cow was in fact with calf and not barren as the parties had believed when they made their agreement. When Sherwood returned to the farm several days later to pick up the cow, Walker refused to accept payment or deliver the cow which subsequently prompted Sherwood to bring suit against Walker who then took possession of the cow by writ of replevin."

"Right," my young friend said.

"The court held that if both parties thought the cow was barren, the contract was voidable on grounds of mutual mistake. In other words, because both parties were mistaken about the cow's fertility, the consideration failed for the cow as she actually was a cow, not a barren animal or heifer. So," I said, "the cow didn't sue. This was between the whiskey-maker and the farmer."

"Yeah."

"A story about people. In this case, arguing over a cow."

"I 'spose."

I stood up straight and recited:

"If one should ask why she doth grieve. She would answer sadly, "I can't conceive." Her shame is a weary weight like stone, for Rose the second of Aberlone.

A dismal specter haunts this wake — the law of mutual mistake; and even the reluctant drone must cope with Rose of Aberlone.

In fiddles of dubious pedigree, In releases of liability, in zoning rules unknown to lessors, In weird conceits of law professors; in printers' bids and ailing kings; in mutations and sorts of things; in many a subtle and sly disguise; there lurks the ghost of her brown eyes. That she will turn up in some set of facts is almost as certain as death and taxes: For students of law must still atone for the shame of Rose of Aberlone."

"University of Chicago Professor Brainerd Currie," I grinned and said. "An expert in the law conflicts." It's amazing what sticks in the gray goo of your brain after thirty years.

"One other thing," I offered.

He looked up eagerly at me. Who else, he must have wondered, knew so much about barren cows?

"This ain't rocket science. The law is logical. Most times it's just common sense dressed up for cotillion."

"Yeah." He ruminated for a moment. It's just that …"

"What?"

"It's so damn stressful."

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 or at either of his email addresses, robbins@slblaw.com or robbins@colorado.net.