As there is no common law of breach of warranty in New Hampshire, plaintiff's right of recovery, if any, is governed by New Hampshire Revised Statutes Annotated (RSA) 382-A:2-313, 2-314, or 2-315. "RSA 382-A:2-314 generally provides that a seller impliedly warrants that his goods are merchantable or generally fit for the `ordinary purposes' for which the goods are used, unless the seller validly excludes or modifies the warranty." Xerox Corp. v. Hawkes, 124 N.H. 610, 616, 475 A.2d 7 (1984); see also H.G. Fischer X-Ray Co. v. Meredith, 121 N.H. 707, 710, 433 A.2d 1306 (1981) ("Absent a valid disclaimer, see RSA 382-A:2-316, any express warranties made by the seller and an implied warranty of merchantability attach to the goods that are the subject of a sale."). If a plaintiff is to succeed on a claim of breach of implied warranty of merchantability, there must be actual proof of such noncompliance with the warranty.
New Hampshire case law has reiterated the notice requirement. H.G. Fischer X-Ray Co. v. Meredith, 121 N.H. 707, 711, 433 A.2d 1306, 1308 (1981); Elliot v. Lachance, 109 N.H. 481, 484, 256 A.2d 153, 155-56 (1969). In this case, defendants claim that plaintiff never gave notice of its breach of warranty claim prior to filing suit.
Xerox Corp. v. Hawkes, 124 N.H. 610, 616, 475 A.2d 7, 9 (1984); see RSA 382-A:2-313(1)(a) (1994). Absent a valid disclaimer or limitation, an express warranty attaches to the goods that are the subject of the sale, H.G. Fischer X-Ray Company, Inc. v. Meredith, 121 N.H. 707, 710, 433 A.2d 1306, 1308 (1981), and a breach of it gives rise to a cause of action for damages, Xerox Corp., 124 N.H. at 616, 475 A.2d at 9; see RSA 382-A:2-714 (1994). In this case, the defendant does not dispute the content of its salesperson's representations to the plaintiffs.