Frigaliment Importing Co, Ltd., v. B.N.S. International Sales Corp. (1960)/395

Facts: The issue is one of chicken. P defines chicken as that which is young and suitable for broiling and frying. D defines chicken as any bird of that particular genus that meets the specified weight and quality, this according to the D includes stewing chicken, which the P would term fowl. Two contracts involved:

One: May 2, 1957 D, the NY sales corp., confirmed sale to P as delineated.

Two: same date though the heavier chicken was called for.

Portions of the first shipment were received on May 28^th in Switzerland of which the P claimed were fowl “stewing chicken” as stipulated on the bag. Shipment under the second contract was made the following day with the same weight of birds though the D stopped the transportation in Rotterdam.

Action: breach of the warranty that goods sold shall correspond to the description

NY as applicable law was agreed upon.

A. P’s initial argument addressing the weight of the birds as the determining factor as to their “age” is not persuasive.

i. D’s argument at this point contends that the contract called for US Fresh Frozen chicken, Grade A…in essence referencing the Dept of Agriculture.

Initial negotiations were conducted between the D’s secretary (Bauer) and Stovicek. Bauer accepted an agreement after testing the market price and responded as such in a cable.

B. The P emphasized the use of German in the contracts though the English word ‘chicken’ was used, P claiming the understanding that this was young chicken and that the D’s being fluent in German should have realized this as there are two different words used in German to distinguish the types of chicken.(pg.397 top)

i. D testified he asked P what type of birds were wanted and the answer was “any kind” and a cable was sent affirming ‘Huhn’ to which an affirmative response was received.

P responds stating that that 1. that is not the true testimony (court found this claim unfounded) and 2. Stovicek had no authority to interpret the meaning of the cable (ct. – can’t have it both ways, stovicek acting as dictionary but not intermediary)that slot was for broker.

C. P’s next contention: there is trade usage in which chicken means young chicken. P gathered 3 witnesses to testify re: usage all of which ended up weakening the P’s case.

i. D’s witnesses included 1.chicken eviscerating plant, 2. good inspection service (Dept of Agri), 3. GSA, 4. institute of American Poultry all of which said chicken is chicken

*the most important of which was from the D.of A. which defined chickens as listed on page 398.

Frigaliment 2

Plaintiff then said such a provision just related to the inspection and grade not definition of chicken and definition in regs is ignored. This is defeated by D’s witnesses.

1. D further makes the argument stating the price of obtaining the broilers at that price (33 cents) was impossible.

And that Stovicek was chargeable with such knowledge.

2. Finally, D relies on conduct. D would not have allowed the second shipment to go through if they were honest in their attempt to get “young chickens”

P responds that cablegram was the evidence showing they wanted young chickens and the other was sent at the D’s peril.

Markell: One must look at course of dealing evidenced over a series of contracts. Course of performance looks at performance within the contract. When determining result analyze allocation of risk born by each party.