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                 THE SUPREME COURT OF NEW HAMPSHIRE

                            ___________________________


9th Circuit Court-Manchester District Division
No. 2014-0730


                                   JEFFREY ROY

                                          v.

                            QUALITY PRO AUTO, LLC

                         Submitted: November 10, 2015
                        Opinion Issued: January 26, 2016

      University of New Hampshire School of Law Civil Practice Clinic, of
Concord (Peter S. Wright, Jr. on the brief), for the plaintiff.


      Quality Pro Auto, LLC, self-represented party, filed no brief.


      Holmes Law Offices PLLC, of Concord (Gregory A. Holmes on the brief),
for New Hampshire Automobile Dealers Association, as amicus curiae.


      DALIANIS, C.J. The plaintiff, Jeffrey Roy, appeals an order of the Circuit
Court (Michael, J.) approving a recommendation of the Judicial Referee
(Champagne, J.) that judgment be entered in favor of the defendant, Quality
Pro Auto, LLC, on the plaintiff’s small claim action alleging, among other
things, that the defendant had breached the implied warranty of
merchantability when it sold a used motor vehicle to him. See RSA 382-A:2-
314 (2011). We affirm.

       The relevant facts follow. The plaintiff bought a used motor vehicle from
the defendant for $1,895. The bill of sale indicated that the vehicle was sold
“As is As seen.” The sale also included a form from the New Hampshire
Division of Motor Vehicles (DMV) titled “NOTICE OF SALE OF UNSAFE
MOTOR VEHICLE,” which states, in pertinent part: “If you are considering the
purchase of a used motor vehicle which may not pass a New Hampshire safety
inspection, you have a right under RSA 358-F, to request that the dealer
inspect the vehicle prior to sale and list the defects which must be corrected
before an inspection sticker will be issued.” The DMV form contains the
following notice: “The motor vehicle described herein will not pass a New
Hampshire inspection and is unsafe for operation.” By signing the form, the
plaintiff “acknowledge[d] that [the] vehicle will not pass a New Hampshire
inspection, is unsafe for operation, and cannot be driven on the ways of
this state.” The plaintiff indicated on the form that he did not “desire a safety
inspection to be conducted.”

       According to the plaintiff, after he drove the vehicle to his home in Maine,
he discovered that it “would not pass inspection because the frame was
completely rotted almost to the point where it was dangerous.” The plaintiff
alleges that the motor vehicle had “two rust holes, one the size of a softball,”
and that “[b]ecause the holes completely compromised the structural integrity
of the vehicle, the vehicle failed inspection and was unsafe.” The plaintiff
further alleges that when he “tried to get his money back, [the defendant]
refused, asserting that the sale was ‘as is-as shown.’”

      Thereafter, the plaintiff brought a small claim action against the
defendant. The trial court ruled in favor of the defendant. This appeal
followed.

      On appeal, the plaintiff argues that the trial court erred by failing to rule
that the defendant breached the implied warranty of merchantability. He
contends that, to the extent that the trial court found that he waived this
implied warranty, the court erred. Because we conclude that the implied
warranty was not breached, we do not reach the plaintiff’s waiver arguments.

      Resolving the issues on appeal requires that we engage in statutory
interpretation. “Statutory interpretation is a question of law, which we review
de novo.” Appeal of Local Gov’t Ctr., 165 N.H. 790, 804 (2014). “In matters of
statutory interpretation, we are the final arbiter of the intent of the legislature
as expressed in the words of the statute considered as a whole.” Id. “We first
look to the language of the statute itself, and, if possible, construe that
language according to its plain and ordinary meaning.” Id.



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      The implied warranty of merchantability is set forth in RSA 382-A:2-314,
which is part of the Uniform Commercial Code (UCC). When we interpret the
UCC, we “rely not only upon our ordinary rules of statutory construction, but
also upon the official comments to the UCC.” Rabbia v. Rocha, 162 N.H. 734,
738 (2011); see RSA 382-A:1-103(a)(3) (2011) (providing that the UCC must be
construed to make uniform the law in various jurisdictions).

      RSA 382-A:2-314 provides:

      (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.

      (2) Goods to be merchantable must be at least such as

         (a) pass without objection in the trade under the contract
      description; and

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

         (c) are fit for the ordinary purposes for which such goods are
      used; and

          (d) run, within the variations permitted by the agreement, of
      even kind, quality and quantity with 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.

The official comments to RSA 382-A:2-314 explain that “[t]he question when
the warranty is imposed turns basically on the meaning of the terms of the
agreement as recognized in the trade.” RSA 382-A:2-314 cmt. 2. “Goods
delivered under an agreement made by a merchant in a given line of trade must
be of a quality comparable to that generally acceptable in that line of trade
under the description or other designation of the goods used in the agreement.”
Id. With regard to used goods, the official comments state that a contract for


                                         3
such goods “involves only such obligation as is appropriate to such goods for
that is their contract description.” RSA 382-A:2-314 cmt. 3.

       Here, the defendant sold the plaintiff a used motor vehicle that was
expressly described as one that “will not pass a New Hampshire inspection, is
unsafe for operation, and cannot be driven on the ways of this state.” (Bolding
and emphasis omitted.) Given this description, the fact that the vehicle is, in
fact, unsafe and that it failed a motor vehicle inspection did not constitute a
breach of the implied warranty of merchantability. In other words, the subject
vehicle was merchantable within the meaning of the parties’ contract.
Accordingly, we conclude that the trial court did not err when it entered
judgment for the defendant on the plaintiff’s breach of implied warranty of
merchantability claim.

      In arguing for a contrary result, the plaintiff relies upon cases from other
jurisdictions in which courts have found that the condition of a used motor
vehicle violated the implied warranty of merchantability. His reliance upon
those cases is misplaced. Unlike the vehicle in this case, the vehicles in the
cases upon which the plaintiff relies were not sold as vehicles that were “unsafe
for operation.” According to the amicus curiae, “New Hampshire is unique
among the states because it allows the sale of unsafe vehicles to the public.”
See RSA ch. 358-F (2009). Ordinarily, “[f]or a motor vehicle to be
‘merchantable’, i.e. fit for the ordinary purposes for which such a motor vehicle
is used, it should be able to be used on a public highway.” Kimpel v. Delaware
Public Auto Auction, No. CIV.A.-2000-02-224, 2001 WL 1555932, at *3 (Del.
Ct. Com. Pl. Mar. 6, 2001). However, such is not the case when, as here, a
motor vehicle is sold as one that is “unsafe for operation” and that “cannot be
driven on the ways of this state.” (Bolding and emphasis omitted.)

                                                  Affirmed.

      HICKS, CONBOY, LYNN, and BASSETT, JJ., concurred.




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