Appeal, No. 233, Jan. T., 1956, from order of Court of Common Pleas No. 7 of Philadelphia County, Dec. T., 1955, No. 1772, in case of Thomas J. Kiely, Jr. et al. v. J. A. Cunningham Equipment, Inc. Order affirmed; reargument refused February 13, 1957.
Edwin B. Barnett, with him Strong, Sullivan, Saylor & Ferguson, for appellants.
William E. Schubert, Jr., with him Thomas M. Schubert, for appellee.
Before Stern, C.j., Jones, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. CHIEF JUSTICE JONES
This appeal is from an order dismissing the plaintiffs' complaint in an action of assumpsit on the ground that the subject-matter is res judicata. In the priorly adjudicated action, the plaintiffs had sought to rescind their written order for the purchase of a welding machine from the defendant which the latter had duly delivered and for which the plaintiffs had paid in full. The cause of action pleaded in that suit was the defendant's
alleged breach of warranty with respect to the machine sold and delivered. The damages claimed were for the original purchase price of the machine and a lump sum for repairs to it while in the hands of the plaintiffs. The defendant filed preliminary objections to the complaint which the court below sustained for the reason that the averred notice of rescission was not made timely (see Sec. 69 of the Sales Act of May 19, 1915, P.L. 543, 69 PS § 314) wherefor the plaintiffs' acceptance of the machine was to be conclusively presumed (see Sec. 48 of the Sales Act, supra, 69 PS § 258). The court accordingly entered an order dismissing the complaint. No appeal was taken from that order.
Subsequently, the plaintiffs instituted the present action wherein the parties are the same, the cause of action the same and the relief sought the same, namely, damages for the defendant's alleged breach of an express warranty with respect to the machine contained in the contract of sale. But, because the plaintiffs now claim, in addition to damages measured by the purchase price of the machine and the cost of repairs to it, also for consequential damages, they assert that the former action was not res judicata of the present one. The defendant again filed preliminary objections to the complaint, setting forth several grounds, inter alia, res judicata, which was the ground upon which the learned court below sustained the preliminary objections and dismissed the complaint. This appeal by the plaintiffs followed.
The fallacy in the appellants' contention lies in their apparent misconception that the quantum of damages claimed for the alleged breach of warranty constitutes the cause of action. Accordingly, they argue that, since they have augmented the damages in the instant action
by the additional claim for consequential damages, the action is based on a different cause. With that, we are unable to agree. As the learned court below correctly observed, - "There has been no change in ...