Reference no: EM131473848

Question: KOLARIK v. CORY INT'L CORP., 721 N.W.2D 159 (IOWA 2006)

FACTS Plaintiff fractured a tooth while biting down on an olive from a jar of pimento-stuffed green olives that had been imported and sold at wholesale by Defendant. Plaintiff sued, arguing that the words "minced pimento stuffed" on the label of the jar of olives created an express warranty that the olives had been pitted. The trial court granted summary judgment for Defendants, and Plaintiff appealed. DECISION The appellate court affirmed the trial court's ruling. UCC§ 2-313 provides that an express warranty can be created by a description of the goods. However, comment 7 to UCC§ 2-313 qualifies this provision by stating: Of course, all descriptions by merchants must be read against the applicable trade usages with the general rules as to merchantability resolving any doubts. Defendant's vice president of quality control testified in his deposition that olives must be pitted in order to be stuffed. He further testified: [T]here's a reasonable expectation that most of the pits would be removed, and there's some expectation that it's not a perfect world, and some of the pits or fragments may not be removed.

When the olives go into those machines, the machines do very well, but, you know, the olives have different shapes. And the reason they don't get pitted right all the time is because of the different shapes of the olives. Because pitted olives are processed and received in bulk, no practical method of inspection exists. The United States Department of Agriculture standards for pitted olives allow 1.3 pits or pit parts per 100 olives. The appellate court thus concluded: "[E]xpress warranties ... must be read in terms of their significance in the trade and relative to what would normally pass in the trade without objection under the contract description." Given the evidence of how the defendants receive and resell these olives, it is unrealistic to impart to the description "minced pimento stuffed" the meaning that defendants are guaranteeing that the olives in the jar are entirely free of pits or pit fragments. It is much more realistic to interpret the description as only warranting that the particular jar of olives contains pimento-stuffed, green olives that would pass as merchantable without objection in the trade. Plaintiff has provided no evidence that the contents of the jar, taken as a whole, did not live up to this warranty. The trial court's decision was affirmed.