Mistaken statement in intro to Borden case

Forums Mistakes in the casebook Mistaken statement in intro to Borden case

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    • #1100
      Robert Brauneis

      Barton, your casebook is wonderful, thanks so much for all of your work. One small correction. On p. 366 of v.5.0, the paragraph introducing Borden Ice Cream Co. v. Borden’s Condensed Milk Co. states that “Appellee did not, however, manufacture ice cream; indeed, its corporate charter did not allow it to do so.” I don’t think the opinion supports that statement. Borden Condensed Milk Co. was in fact making and selling “Borden’s Malted Milk Ice Cream,” and its corporate charter authorized it to “manufacture, sell and otherwise deal in . . . all products of milk; to manufacture, sell and purchase all food products.” That seems to cover ice cream, and the court never says that it doesn’t. Thus, I think the introductory sentence might be best replaced with “However, the only ice cream appellee had ever made was a specialized product made from malted milk and sold only to hospitals.”

    • #1101
      Avatar photoMichael Madison

      Bob, I’ve always wondered about the statement in the opinion about “malted milk ice cream.” Did the court accurately describe what Borden had sold? From searching for images of Borden’s marks in its early days, I’ve found lots of examples of packaging for malted milk sold by Borden (under the Borden name, the Eagle name, and “Thompson,” I think), along with condensed milk and evaporated milk. But I’ve never come across anything packaged or advertised in the relevant era as “malted milk ice cream.” In addition, corporate histories of Borden generally recite the fact that Borden went into ice cream later, in the late 1920s, when it acquired The J.M. Horton Ice Cream Company and the Reid Ice Cream Corporation. Best, Mike

    • #1102
      Avatar photoLaura Heymann

      The only reference I’ve found so far is in the June 1914 Journal of Osteopathy — on page 390, in a listing of convention exhibits, it notes that Borden will be offering ice cream made from malted milk:

      Click to access TheJournalofOsteopathyJune.pdf

    • #1103
      Barton Beebe

      Wow, thank you all for such a thorough consideration of Bordengate. In light of all this information, I think the prudent course is to adopt Bob’s proposed amendment, which threads the needle nicely. I’ll do this in the next edition of the casebook to come out this summer.

      Thanks, this is a welcome break from the amicus Jeanne Fromer and I are writing in Brunetti, in which we use our data to list out, among other things, all the profanities and incredibly foul language that triggered _simultaneous_ 2a and 2d refusals from PTO.

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