Does a plaintiff buyer sustain its burden of proving that "chicken" in a sales contract meant only young chicken suitable for broiling and frying, rather than any bird of that genus, including stewing chicken, where the term is ambiguous and the evidence of trade usage and contractual context is conflicting?

Plaintiff Frigaliment Importing Co., a Swiss corporation, and defendant B.N.S. International Sales Corp., a New York sales corporation, entered into two contracts dated May 2, 1957, for the sale of "US Fresh Frozen Chicken, Grade A, Government Inspected, Eviscerated," in two weight categories: 2½-3 lbs. and 1½-2 lbs. The first contract called for 75,000 lbs. of the heavier birds at $33.00 per 100 lbs. and 25,000 lbs. of the lighter birds at $36.50; the second called for 50,000 lbs. of the heavier birds. Negotiations occurred through Stovicek, who was in New York for the Czechoslovak government and whose cable from plaintiff set the basis for the deal, and Bauer, defendant's secretary, who testified he asked what kind of chickens were wanted and was told "any kind of chickens." When the first shipment arrived in Switzerland, plaintiff found that the 2½-3 lbs. birds were stewing chicken ("fowl"), not young chicken suitable for broiling and frying. Plaintiff protested, but a second shipment was made with the same stewing chicken in the heavier weight, and defendant stopped it in Rotterdam. At the time, broilers of that weight cost 35-37 cents per pound, above the 33-cent contract price, while defendant procured fowl at about 30 cents. Plaintiff sued for breach of warranty that the goods conform to the description.

Plaintiff brought an action in the United States District Court for the Southern District of New York alleging breach of the warranty that goods sold correspond to the description under the New York Personal Property Law. The case was tried to the court, and the opinion constituted the court's findings of fact and conclusions of law. The court directed that judgment be entered dismissing the complaint with costs.

(Friendly, J.)

No. Plaintiff failed to carry its burden of proving that "chicken" was used in the narrow sense of young chicken rather than the broad sense including stewing chicken. The word "chicken" standing alone is ambiguous, and plaintiff bore the burden of persuasion that the narrower meaning governed.

The contract itself did not resolve the ambiguity. Plaintiff's argument that the 1½-2 lbs. birds must be young chicken, so the 2½-3 lbs. birds must be as well, was unpersuasive, since a contract for apples of two sizes can be filled with different varieties. The contract's reference to "Government Inspected" and "Grade A" arguably incorporated Department of Agriculture regulations, 7 C.F.R. § 70.301, which define "chickens" to include stewing chicken or fowl, supporting defendant.

Plaintiff's reliance on the cablegrams using the English word "chicken" was undermined by Bauer's testimony that Stovicek said "any kind of chickens" and confirmed "Huhn" in German. Plaintiff cannot rely on its cable to Stovicek as its dictionary and then repudiate Stovicek's interpretation of it.

Plaintiff also failed to prove a trade usage. Because defendant was new to the poultry trade, plaintiff had to show actual knowledge of the usage or a usage so long continued, well established, notorious, and universal that knowledge is presumed. Walls v. Bailey, 49 N.Y. 464 (1872). Plaintiff's witnesses were weakened by their own practice of specifying "broiler" or "fowl" in their transactions, and contrary witnesses and sources, including Weininger, Fox, Sadina, General Services Administration specifications, and Institute of American Poultry Industries statistics, treated "chicken" as including all classes.

Market realities also favored defendant: broilers of that weight cost more than the contract price, so plaintiff could not have expected defendant to supply them at a loss. Defendant's belief that it could perform with stewing chicken coincided with an objective meaning of "chicken," so plaintiff's claim failed.