ties understood it to be a warranty. This was an executory contract of a patent right; Bond had not seen the churn in action oth- er than in a demonstration where water was churned. The Court found no express war- ranty, and Bond left unsatisfied, after the Court concluded that Clark was not aware of the circular.


Dangers of Creameries


Creameries were dangerous places. In 1929, Eliza Cole was injured when her horse was frightened by an exploding boiler at the North Danville Co-op Creamery, caus- ing the Concord wagon she was driving to overturn and causing injury. She sued for damages, claiming negligence. She was de- livering two cans of cream in her Concord wagon, waiting to have her cans returned to her filled with buttermilk, when the blast occurred.47


The cooperative attempted to


defend against liability, to no avail. At Rut- land, Janice Buck died after being struck by a train when delivering cans of milk to the creamery.48 The Vermont Industrial Accident Board


awarded damages against the Moretown Creamery Company for an accident that oc- curred during the building of a new cream- ery building in 1917.49


The man fell from


scaffolding and was injured, but the award was vacated after the Supreme Court found


that the work was being done by an inde- pendent contractor, not the creamery, even though the workers were paid by checks from the creamery accounts, endorsed over to the contractor. The contractor, not the creamery, was liable. This was the first de- cision of the high court involving the state’s new workmen’s compensation law, enacted in 1915 following the constitutional amend- ment of 1913.50 Together these decisions and statutes generally favor the farmer. In close calls, ag- riculture’s importance to the state’s econo- my shows the impact of policy on law.


Oleo


Hippolyte Mège Mouriès invented mar- garine in 1869, mixing beef tallow with milk, winning a contest and prize money of- fered by Napoleon III. The goal was a cheap butter substitute for the poor.51


Oleo was


introduced in the United States in 1873; by 1880, the Vermont General Assembly was ready to protect the dairy industry. That year the law first required all packaging of oleo—defined as “any article of substance and not made exclusively of milk or cream, but into which the oil or fat of animals not produced from milk, enters as a component part, or into which melted butter or any oil thereof has been introduced to take place of cream”—to be labeled as oleomarga-


rine, in letters at least one-half inch in size.52 Six years later, in 1886, the Congress enact- ed a similar law, requiring a special license, tax, and mandatory lettering for oleo sales. The federal law required the label to state, “The manufacturer of the oleomargarine herein contained has complied with all the requirements of law.”53 The U.S. Supreme Court ruled on the en-


forceability of a Pennsylvania statute pro- scribing the manufacture and sale of oleo- margarine in 1888. The defendant attempt- ed to show that his butterine was a healthy product, “wholesome and nutritious,” but that evidence was properly excluded. Jus- tice John Marshall Harlan wrote that


the offer in the court below was to show by proof that the particular arti- cles the defendant sold, and those in his possession for sale, in violation of the statute, were, in fact, wholesome or nutritious articles of food. It is en- tirely consistent with that offer that many, indeed that most, kinds of oleo- margarine butter in the market contain ingredients that are or may become in- jurious to health. The court cannot say, from anything of which it may take ju- dicial cognizance, that such is not the fact.54


Oleomargarine took a long time to earn


12


THE VERMONT BAR JOURNAL • WINTER 2013


www.vtbar.org


Ruminations: The Legal History of Vermont Butter


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