Annotations

• 1. Express warranty

• 2. Implied warranty

• 3. Breach of warranty

• 1. Express warranty

• Pursuant to this section, in order to create an express warranty, the seller must make an affirmation of fact or promise to the buyer which relates to the goods and becomes part of the basis of the bargain. Freeman v. Hoffman-La Roche, Inc., 260 Neb. 552, 618 N.W.2d 827 (2000).

• The existence and scope of an express warranty under the UCC are ordinarily questions to be determined by the trier of fact. Since an express warranty must have been made part of the basis of the bargain, it is essential that the plaintiff prove reliance upon the warranty. The breach of an express warranty is established by showing that the goods to which it applies do not conform to the terms of the warranty. Hillcrest Country Club v. N.D. Judds Co., 236 Neb. 233, 461 N.W.2d 55 (1990).

• An express warranty must have been made a part of the basis of the bargain. In order to recover for breach of an express warranty, a buyer must prove there was reliance upon the warranty. Wendt v. Beardmore Suburban Chevrolet, 219 Neb. 775, 366 N.W.2d 424 (1985).

• A warranty is express under this section when the seller makes an affirmation with respect to the article to be sold, pending the agreement of sale, upon which it is intended that the buyer shall rely in making the purchase. Mennonite Deaconess Home & Hosp. v. Gates Eng'g Co., 219 Neb. 303, 363 N.W.2d 155 (1985).

• The test for whether an express warranty is created is whether the seller assumes to assert a fact of which the buyer is ignorant, or whether he merely states an opinion or expresses a judgment about a thing as to which they may each be expected to have an opinion and exercise judgment. Peterson v. North American Plant Breeders, 218 Neb. 258, 354 N.W.2d 625 (1984).

• A description of goods which, according to the contemplation of the parties, contains certain representations, and which becomes a part of the basis of the bargain, creates an express warranty that the goods shall conform to the description and therefor also to the representations contemplated. Moore v. Puget Sound Plywood, 214 Neb. 14, 332 N.W.2d 212 (1983).

• It is the general rule of law that a warranty is express when the seller makes an affirmation with respect to the article to be sold, pending the agreement of sale, upon which it is intended that the buyer shall rely in making the purchase. England v. Leithoff, 212 Neb. 462, 323 N.W.2d 98 (1982).

• Manufacturer and lessor of defective scaffold held liable on basis of warranties made in advertising by manufacturer and adopted by lessor, which under facts in this case became basis of the bargain as a matter of law. Hawkins Constr. Co. v. Matthews Co., Inc., 190 Neb. 546, 209 N.W.2d 643 (1973).

• Where they become a part of the basis of the bargain, any affirmation of fact or promise made by seller to buyer which relates to the goods creates an express warranty that the goods shall conform to the affirmation or promise, and any description of the goods or any sample or model creates an express warranty that the goods shall conform to the description, sample or model. Larutan Corp. v. Magnolia Homes Manuf. Co., 190 Neb. 425, 209 N.W.2d 177 (1973).

• Express warranties may be created by affirmation, promise, description, or sample. Representations in a brochure can create an express warranty. Neville Const. Co. v. Cook Paint and Varnish Co., 671 F.2d 1107 (8th Cir. 1982).

• Under facts in this case, applicability of this section was jury question. Gillette Dairy, Inc. v. Hydrotex Industries, Inc., 440 F.2d 969 (8th Cir. 1971).

• A manufacturer or seller may be held liable under an advertising warranty even though he is not in privity with the purchaser. Omaha Pollution Control Corp. v. Carver-Greenfield Corp., 413 F.Supp. 1069 (D. Neb. 1976).

• 2. Implied warranty

• Where a contract for the bailment of a chattel occurs, the contract may give rise to an implied warranty of fitness for the purpose for which the chattel was bailed. Herman v. Midland Ag Service, Inc., 200 Neb. 356, 264 N.W.2d 161 (1978).

• 3. Breach of warranty

• Revocation of acceptance is not a prerequisite to a suit for breach of an express warranty. Evidence that an automobile described by a dealer-seller was in fact only the skeleton of the car with a variety of assorted parts was sufficient to sustain the trial court's finding of breach of an express warranty. Warner v. Reagan Buick, 240 Neb. 668, 483 N.W.2d 764 (1992).

• Seller's warranties that goods were free from encumbrances, and it would defend against claims of others, were breached where holder claimed storage lien which seller failed to get released. Goosic Constr. Co. v. City Nat. Bank of Crete, 196 Neb. 86, 241 N.W.2d 521 (1976).

• Breach of warranty issue supported by evidence of representation that milk production would be increased by feeding seller's feed supplement in amounts as instructed, and proof of loss in production thereby, but directed verdict for defendant affirmed because purchaser failed to prove extent of damages therefrom. Shotkoski v. Standard Chemical Manuf. Co., 195 Neb. 22, 237 N.W.2d 92 (1975).