## Facts

- James J. Ewers, a saltwater aquarium hobbyist, bought seashells, coral, and driftwood from Franklin Eisenzopf’s retail shop for use as aquarium decorations.
- Before purchase, Ewers’s friend asked the shop’s sales clerk whether the items were suitable for placement in a saltwater aquarium.
- The clerk stated the items came from salt water and were suitable for saltwater aquariums if they were rinsed.
- Ewers rinsed the items for about 20 minutes in a salt and tap water solution and placed them in the aquarium.
- Within one week, 17 fish in the aquarium died.
- A hobby shop owner inspected the tank, found the water polluted, observed shells emitting a toxic odor, and opined that decaying matter from organisms in the shells and coral caused the fish deaths.
- The hobby shop owner testified that making such items safe would require a week-long cleansing process involving soaking in boiling water, not merely rinsing.
- Ewers sued for damages, alleging breach of express warranty and implied warranty of fitness for a particular purpose under Wisconsin’s UCC.

## Issues

1. Whether the clerk’s statement that the items were suitable for saltwater aquariums if rinsed created an express warranty under Wis. Stat. § 402.313.
2. Whether the sale also supported an implied warranty of fitness for a particular purpose under Wis. Stat. § 402.315.

## Decision

- The Wisconsin Supreme Court reversed the circuit court’s affirmance of the small claims judgment for the seller.
- The court held the clerk’s assurance constituted an express warranty under Wis. Stat. § 402.313.
- The court concluded there was evidence the goods failed to conform to the warranty because rinsing was insufficient to make them safe for the stated use.
- The case was remanded for further proceedings consistent with the opinion.

## Legal Principles

- An express warranty is created by any affirmation of fact or promise relating to the goods that becomes part of the basis of the bargain; no formal warranty language is required.
- A seller’s specific assurance of suitability for a buyer’s stated use can be an actionable express warranty when the buyer’s inquiry and subsequent purchase show the assurance induced the transaction.
- Nonconformity may be shown when the goods, used as warranted (including any specified condition such as rinsing), cause harm consistent with failing to meet the assured suitability.

## Conclusion

A retailer’s concrete assurance that aquarium decorations were suitable for a saltwater tank if rinsed could form an express warranty when it induced the purchase; because evidence supported that the items were unsafe absent more extensive cleaning, the dismissal for the seller was reversed and the case remanded.


Ewers v. Eisenzopf, 276 N.W.2d 802 (Wis. 1979)