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Frigaliment Importing Co. v. B.N.S. International Sales Corp

Citation. Frigaliment Importing Co. v. B. N. S. Int’l Sales Corp., 190 F. Supp. 116, 1960)
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Brief Fact Summary.

Frigaliment Importing Co. (Plaintiff) had a contract with B.N.S. International Sales Corp. (Defendant) to export to Plaintiff a certain quantity of chickens. When chickens that were not acceptable to the Plaintiff arrived, this dispute for breach of warranty ensued.

Synopsis of Rule of Law.

A party who is allowed to give testimony regarding the intention of the parties will have the burden of proof.


The action is for breach of warranty that goods sold shall correspond to the description. Defendant agreed to export to Plaintiff a certain quantity of chickens. Defendant shipped chickens that were not young chickens suitable for boiling and frying but stewing chickens. Plaintiff rejected the shipment of stewing chickens claiming that the contract contemplated young chickens. Plaintiff sued Defendant for breach of warranty arguing that there is a trade usage where chickens are to mean young chickens.


Whether the party providing testimony regarding the intention of the parties will also have the burden of proof?


Judgment shall be entered dismissing the complaint with costs.
In order to prove trade usage, the Plaintiff must prove that the usage is a so long continuance, so well established and universal that the presumption is violent that the parties contracted with reference to it and made it part of the agreement. Plaintiff has the burden to prove the intention of the parties that the Plaintiff is setting forth.
Here, the Plaintiff failed to sustain his burden of showing that the stewing chickens are not chickens. A chicken could refer to any of the six definitions referred to by the Department of Agriculture. Defendant’s subjective belief would be irrelevant if they had in fact shipped turkey, but the subjective intent did actually correspond to one of the six definitions of chicken. The burden is on the Plaintiff to show that chicken was used in the narrower rather than in the broader sense or that Defendant knew or should have known that this is what the Plaintiff meant. Here, the Plaintiff did not show that chicken was used in the narrower sense nor did the evidence demonstrate that the Defendant knew what the Plaintiff meant. Therefore, the complaint should be dismissed.


The burden of persuasion is on the party who is trying to prove the intention of the parties. If that party is the plaintiff, his burden of persuading the court that the meaning favorable to him was the one intended by the parties may be substantial.

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