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Frigaliment Importing Co. v. B.N.S. International Sales Corp.
United States District Court, Southern District of New York
190 F. Supp. 116 (1960)
Frigaliment Importing Co. (Frigaliment) (plaintiff), a Swiss company, offered to buy chicken for $0.33/lb. from B.N.S. International Sales Corp. (BNS) (defendant), an American corporation. The negotiations were primarily in German, but Frigaliment used the English word "chicken" to mean young chickens, instead of the German word "huhn," which includes stewing chickens (fowl). Frigaliment intended to purchase only young chickens suitable for broiling and frying (broilers). BNS, which was new to the trade, interpreted Frigaliment’s order for “chickens” as encompassing all types of chicken. The market rate for fowl at the time was $0.30/lb., while broilers were between $0.35 and $0.37/lb. Both the cablegrams exchanged by the parties and the contracts stated that the chicken was to be “Grade A, Government Inspected,” and the Department of Agriculture’s regulations were incorporated by reference. BNS shipped primarily fowl to Switzerland. After the first shipment, Frigaliment complained but allowed BNS to make the second shipment. After Frigaliment found fowl in the second shipment, Frigaliment sued BNS for breach of warranty, claiming that BNS delivered goods that did not meet the description in the contract. At trial, Frigaliment’s expert claimed that “chicken” meant broilers in the trade, but his testimony was undermined by the fact that his own contracts specifically requested "broilers" when he wanted younger birds or "fowl" when he wanted older birds. One of BNS’s suppliers argued that “chicken” did not include fowl, but admitted that it asked whether BNS wanted “fowl or frying chickens” when BNS asked for “chickens.” Frigaliment offered evidence that at least some suppliers and journals differentiate between “chickens” and “fowl.” Nevertheless, BNS’s experts testified that in the trade, the term “chicken” encompasses broilers and fowl. Further, BNS pointed out that the Department of Agriculture’s grading regulations include broilers and fowl in the definition of the term “chicken.” The United States District Court for the Southern District of New York considered the question.
Rule of Law
Holding and Reasoning (Friendly, J.)
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