190 F. Supp. 116, 117 (S.D.N.Y. 1960)
Frigaliment Importing Co., a Swiss corporation, contracted on May 2, 1957, with B.N.S. International Sales Corp., a New York sales corporation, for the sale of US Fresh Frozen Chicken, Grade A, Government Inspected, Eviscerated. The first contract required 75,000 lbs. of 2½-3 lbs. birds at $33.00 per 100 lbs. and 25,000 lbs. of 1½-2 lbs. birds at $36.50 per 100 lbs., scheduled for May 10 shipment FAS New York.1 The second contract called for 50,000 lbs. of the heavier birds and 25,000 lbs. of the lighter at $37.00 per 100 lbs., scheduled for May 30.2
Negotiations were conducted in New York between defendant's secretary Ernest R. Bauer and Mr. Stovicek, who was in New York for the Czechoslovak government.3 A cable from plaintiff dated April 26, 1957, announced they were buyers of 25,000 lbs. of chicken 2½-3 lbs. weight at a price up to 33 cents per pound for shipment on May 10.4 Bauer accepted after testing the market, and Stovicek sent a confirmation that evening, with subsequent cables using the English word "chicken" despite being predominantly in German.5
The initial shipment under the first contract arrived in Switzerland on May 28, revealing that the 2½-3 lbs. birds were stewing chicken or fowl, with many cartons so labeled.6 Protests followed, but the second shipment of similar larger birds was made on May 29 and stopped by defendant at Rotterdam.7 This action for breach of warranty ensued in the United States District Court for the Southern District of New York.8
Plaintiff offered testimony from trade witnesses asserting that "chicken" meant broilers and fryers, along with market reports distinguishing chicken from fowl.9 Defendant presented witnesses stating that chicken encompasses all classifications and pointed to Department of Agriculture regulations listing the classes including hen or stewing chicken or fowl.10
After the first shipment, plaintiff sent cables on May 28 complaining the larger birds constituted fowl, and defendant responded refusing to recognize the objection while offering to ship the second contract goods.11 Plaintiff confirmed shipment on May 29 while insisting the merchandise must be as per contract.12
Whether the term "chicken" in the two May 2, 1957 contracts referred to young chickens suitable for broiling and frying or to any bird of the genus meeting the specified weights and grades including stewing chickens?13
When a term in a contract for the sale of goods is ambiguous, New York law requires examination of the contract language, any incorporated regulations, trade usage, market realities, and the parties' objective manifestations to determine meaning, with the plaintiff bearing the burden of persuasion that the term carried the narrower sense.14
No. The contracts described the goods as US Fresh Frozen Chicken, Grade A, Government Inspected, Eviscerated.15 The contract called for "US Fresh Frozen Chicken, Grade A, Government Inspected," thereby incorporating by reference the Department of Agriculture's regulations.16
Defendant's witnesses from the poultry trade testified that chicken encompasses all classifications including stewing chickens.17 The $33 per 100 lbs. contract price for the 2½-3 lb. birds was below the prevailing market price of 35 to 37 cents per pound for broilers, consistent with supplying stewing chickens.18
Plaintiff failed to establish a definite and notorious trade usage limiting chicken to young birds.19 Its witnesses did not consistently rely on that usage in their own transactions.20 No proof showed the usage was so well established that defendant must have known of it.21
The term chicken in the contracts included stewing chickens meeting the specified weights and grades.22