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would have been useful to distinguish between Monday's bread from
Week One and Monday's bread from Week Two.)
The bread donated to the food banks was "4-day" bread except on
Mondays, when the donation was a combination of 4- and 5-day bread
(a combination of Thursday and Friday deliveries). The parties
focus their attention on Sunday sales, since that was the day on
which sales of 4-day bread were most likely to be made. Respondent
argues that petitioner has not proved that any Thursday (4-day)
bread was sold, and that even if some 4-day bread was sold, the
quantity sold was insignificant.
Petitioner has no records that would establish the quantity of
Thursday bread sold on Sundays, or delivered to food banks on
Mondays. The maintenance of such records would have required the
reading and counting of the minutely printed date codes early on
Sunday and Monday mornings, and would have served no apparent
corporate purpose.
When the store merchandisers periodically stocked the shelves,
they placed the older bread on the top layer in the front of the
shelves, where the older bread was more likely to be sold than the
newer bread that was placed under the older bread or in the back of
the shelves, perpendicular to the bread in front whose labels faced
the customers. But the Thursday and Friday bread eventually were
intermingled, since both bear white Kwik Loks and the store
merchandisers are indifferent to the date codes, which the Court has
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