invitation they declined. It was agreed that a sample of Schaefer's surplus CO 2 would be made available to a Thermice representative from Schaefer's Baltimore facilities for testing purposes. This sample was analyzed by Thermice' chemist, Mr. Goldstein, who reported to Thermice that the sample was of satisfactory quality and odor free; actually testing a shade below 99.9% pure. He reported further that it could be used for most of Thermice's customers, including bottlers. Subsequently, Schaefer was advised that Thermice would commence pick-ups from the Baltimore brewery.
Following Mr. Goldstein's report to his company, Thermice and Schaefer entered into a course of dealings wherein Thermice's tank truck driver, Mr. Kenyon, at stated intervals went to Schaefer's Baltimore Brewery and obtained therefrom weekly tank loads of Schaefer's surplus CO 2. This course of dealing commenced in March of 1969 and continued through August 8, 1969. The amount of each pick-up ranged from about twenty thousand pounds to thirty-five thousand pounds. The total amount obtained by Thermice from Schaefer's Baltimore Brewery was 714,000 pounds.
On August 8, 1969, Thermice was notified of the discovery of the foul smell which emanated from the tank of CO 2 manufactured by Schaefer and delivered by Thermice to Rock Creek. Thermice promptly sent its representatives to Rock Creek's plant and, as heretofore reported, got samples of the material in question, as well as randomly selected bottles of Rock Creek's product manufactured with the CO 2 in question.
Shortly thereafter, Thermice notified Schaefer that there had been a problem with the CO 2 and that pick-ups of that material would be discontinued.
On these facts, the following third-party complaint issues are presented under various provisions of the Uniform Commercial Code, which is applicable both in the District of Columbia, Maryland, Pennsylvania, and New York:
1. Did Schaefer make an express warranty for the CO 2 which it sold Thermice?
2. Were the sales of CO 2 by Schaefer to Thermice subject to any implied warranties?
3. Was Schaefer given appropriate notice under the applicable provisions of the Uniform Commercial Code by Thermice?
The first question presented is dealt with insofar as the facts of this case are concerned by Section 2-313(c) of the Uniform Commercial Code (Section 28:-2-313(c) of the D.C.Code):
(1) Express warranties by the seller are created as follows: