Section 55-2-314 - Implied warranty: merchantability; usage of trade(1) Unless excluded or modified (Section 2-316 [55-2-316 NMSA 1978]), 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 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 [55-2-316 NMSA 1978]) other implied warranties may arise from course of dealing or usage of trade.1953 Comp., § 50A-2-314, enacted by Laws 1961, ch. 96, § 2-314.