(1) Unless excluded or modified (section 2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.

(b) in the case of fungible goods, are of fair average quality within the description; and

(d) run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and

(e) are adequately contained, packaged, and labeled as the agreement may require; and

(f) conform to the promises or affirmations of fact made on the container or label if any.

(3) Unless excluded or modified (section 2-316) other implied warranties may arise from course of dealing or usage of trade.

Annotations

An express, obvious requirement of this section is that the goods in question are the subject of a contract for sale. Cobb v. Sure Crop Chem. Co., 255 Neb. 625, 587 N.W.2d 355 (1998).

When evidence of the condition of the goods delivered supports the finding that they were not merchantable, the fact finder's decision will not be overturned unless clearly wrong. Label Concepts v. Westendorf Plastics, 247 Neb. 560, 528 N.W.2d 335 (1995).

Under subsection (2) of this section, in order to prove that goods are unmerchantable, the buyer must generally first establish the standard of merchantability in the trade. However, when a defect in merchantability is obvious to a layperson, it may not be necessary for the buyer to provide expert testimony as to the standard of performance of a product. Laird v. Scribner Coop, 237 Neb. 532, 466 N.W.2d 798 (1991).

To establish a breach of implied warranty of merchantability, there must be proof that there was a deviation from the standard of merchantability at the time of sale and that such deviation caused the plaintiff's injury. In order for the goods to be merchantable under this section, they must be at least such as are fit for the ordinary purposes for which such goods are used. Mennonite Deaconess Home & Hosp. v. Gates Eng'g Co., 219 Neb. 303, 363 N.W.2d 155 (1985).

When a producer of seed places sealed bags of hybrid seed corn in its chain of distribution, it carries with it, unless effectively excluded or modified, an implied warranty of merchantability that protects the ultimate buyer-user in that chain. Peterson v. North American Plant Breeders, 218 Neb. 258, 354 N.W.2d 625 (1984).

A haystacking machine which will only stack hay for a half day before consuming itself in flames is not suitable for the ordinary purposes for which haystacking machines are sold. Nerud v. Haybuster Mfg., 215 Neb. 604, 340 N.W.2d 369 (1983).

Under the provisions of this section, a plaintiff must prove that a merchant sold him goods, which were "not merchantable" at the time of the sale and the injury or damages to the plaintiff or his property was caused proximately and in fact by the defective nature of the goods and notice was given to the seller of the injury. Gieger v. Sweeney, 201 Neb. 175, 266 N.W.2d 895 (1978).

Proof of leaking fertilizer tank confirms a breach of implied warranty of merchantability. Christensen v. Eastern Nebraska Equipment Co., Inc., 199 Neb. 741, 261 N.W.2d 367 (1978).

Pleading that trade usage excluded implied warranty of fitness of bull for breeding purposes was sufficient to include exclusion of implied warranty of merchantability. Torstenson v. Melcher, 195 Neb. 764, 241 N.W.2d 103 (1976).

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).

Sewage processing plant constructed for sale to city's pollution control corporation by private company was subject to implied warranty of merchantability and of fitness for particular purpose for which it was to be used, and city could recover for breach. Omaha Pollution Control Corp. v. Carver-Greenfield Corp., 413 F.Supp. 1069 (D. Neb. 1976).