Frigaliment Importing Co. v. B. N. S. Int'l Sales Corp.

190 F. Supp. 116 (S.D.N.Y. 1960)

 

RULE:

When one of the parties is not a member of the trade or other circle, his acceptance of the standard must be made to appear by proving either that he had actual knowledge of the usage or that the usage is so generally known in the community that his actual individual knowledge of it may be inferred. 

FACTS:

Defendant state sales corporation had two contracts with plaintiff foreign corporation for the sale of "chicken". After plaintiff received one shipment of stewing chicken and another was stopped, plaintiff brought a breach of warranty action, alleging that the goods sold should have corresponded to the description because the chicken was not suitable for broiling and frying. Plaintiff says 'chicken' means a young chicken, suitable for broiling and frying.

ISSUE:

Does chicken mean only "young chicken" under the contract?

ANSWER:

No.

CONCLUSION:

In dismissing plaintiff's complaint, district court held that plaintiff's reliance on the fact that the contract forms contained words with a blank not filled to negate agency was wholly unpersuasive where the clause's purpose was to permit filling in an intermediary's name to whom commission would be payable. Defendant's subjective intent that it could comply with the contracts by delivering stewing chicken coincided with objective meaning of "chicken," which had at least some usage in the trade; and plaintiff did not sustain its burden that "chicken" was used in the narrower rather than in the broader sense.

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