Holmes

Plaintiffs brought this action in the municipal court to recover damages for injury to their automobile. The court sustained defendant’s demurrer to the complaint without leave to amend on the ground that the action was barred by a judgment plaintiffs had obtained for personal injuries suffered in the same accident. Plaintiffs appeal from the ensuing judgment of dismissal. 1

On August 24, 1962, plaintiffs purchased a used automobile from defendant. The contract of sale contained an express warranty that 11 The used car sold herein is hereby warranted to be in good operating condition and to remain in such condition under normal use and service for a period of 30 days or 1000 miles, (whichever comes first) after delivery.” On September 15, 1962, while Mr. Holmes was driving and Mrs. Holmes was riding as a passenger, the automobile crashed into a fixed object along a downgrade on a mountain road, causing injuries to plaintiffs and damage to the automobile.

On September 6, 1963, plaintiffs filed an action against defendant in the superior court to recover damages for their personal injuries. Their complaint pleaded five causes of action, each of which alleged that the accident was…