249 P.2d 264 (1952)
Appellants had brought an action to recover damages for fraud against respondents. Appellants maintained that respondents had induced them to buy a newly constructed home through false and fraudulent representations. Prior to these claims, appellants had brought a claim against respondents to rescind the contract. A demurrer was sustained on this complaint and appellants failed to amend in the time allowed. The trial court granted respondents' motion for summary judgment on appellants' fraud claims.
- On appeal, respondents contended that the former judgment was res judicata of all the issues presented.
- Appellants argued their failure to secure rescission did not bar their present action.
- The court held that since the fraud allegation was not part of the prior rescission claim, the former judgment of demurrer did not bar the action.
The court reversed the order granting summary judgment; since appellants' fraud claims were not part of its prior claims for rescission, the judgment of demurrer on the prior claim did not bar the subsequent action.
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