Leonard v. Martling

• Decision Date: 28 June 1954
• Citation: 106 A.2d 585,378 Pa. 339
• Parties: LEONARD v. MARTLING et al.
• Court: Pennsylvania Supreme Court

106 A.2d 585

378 Pa. 339

LEONARD v. MARTLING et al.

Supreme Court of Pennsylvania.

June 28, 1954

Suit by a dentist to recover compensation for professional services rendered to one of defendants in reliance on co-defendant's alleged oral guarantee of payment. From a judgment of the Superior Court, as of October Term, 1953, No 4, Ross, J., 174 Pa.Super. 206, 100 A.2d 484, reversing a judgment of the Municipal Court of Philadelphia County, as of April Term, 1951, No. 958, Brown, President, on a jury's verdict for plaintiff, as against defendant guarantor plaintiff appealed. The Supreme Court, No. 194, January Term 1954, Horace Stern, C. J., held that where the complaint in an action to charge defendant on a special promise to answer for another's debt or default or an action to enforce a contract for sale of goods worth $500 or more fails to show that the requirements of the statute of frauds have been complied with, the defense of such statute remains available to defendant at any stage of the proceedings, though not presented by preliminary objection or answer, because such a complaint does not state a cause of action on which recovery can be had.

Judgment of the Superior Court affirmed.

William C. Hamilton, Daniel B. Michie, Jr., Fell & Spalding, Philadelphia, for appellant.

Thomas Maher, Edward Paul Smith, Philadelphia, for appellees.

Before STERN, C. J., and STEARNE, JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ.

HORACE STERN, Chief Justice.

We allowed an appeal from the decision of the Superior Court in this case reported in 174 Pa.Super. 206, 100 A.2d 484.The question involves the proper application of Pa.R.C.P. 1030 and 1032(1), 12 P.S.Appendix to an action brought in violation of the Act of April 26, 1855, P.L. 308, 33 P.S § § 3, 4, ‘ for the prevention of Frauds and Perjuries.’

The suit is by John J. Leonard, a dentist, against Gerald E. Martling and Harvey B. Martling to recover compensation for professional services rendered to the former. Plaintiff alleges that Harvey, a brother of Gerald Martling, orally guaranteed Gerald's payment of any charges he might incur by reason of such services. Harvey denied that he had given any guarantee, but did not, in his answer, plead the statute of frauds. The case came on for trial in the Municipal Court of Philadelphia County before a judge and jury. Before the jury was sworn Harvey's attorney moved for judgment on the pleadings in the nature of a statutory demurrer on the ground that the complaint charged a liability based on an oral guarantee for the debt of another. The motion was dismissed. Plaintiff testified that Harvey stated to him that he ‘ would back his brother,’ that he ‘ would stand behind Jerry in taking care of the payments.’ A motion on behalf of Harvey for a non-suit was refused. The jury rendered a verdict against both defendants and judgment was entered thereon. Harvey appealed to the Superior Court, which reversed the judgment against him and entered judgment in his favor.

Pa.R.C.P. 1030 provides that certain defenses, including that of the statute of frauds, shall be pleaded in a responsive pleading under the heading ‘ New Matter.’ Pa.R.C.P. 1032 provides that ‘ A party waives all defenses and objections which he does not present either by preliminary objection, answer or reply, except (1) that the defense of failure to state a claim upon which relief can be granted * * * may also be made by a later pleading, if one is permitted, or by motion for judgment on the pleadings or at the trial on the merits, * * *.’ Since, therefore, Harvey did not present the defense of the statute of frauds by preliminary objection or answer he waived such defense unless plaintiff had failed to state a claim upon which relief could be granted, in which event his attorney's motion for judgment on the pleadings was in order and should have been granted. The controlling question in the case, therefore, is this:-Did plaintiff fail to state a claim upon which relief could be granted?

The Act of April 26, 1855, P.L. 308, § 1, provides that ‘ No action shall be brought whereby * * * to charge the defendant, upon any special promise, to answer for the debt or default of another, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person by him authorized.’ The cases which have construed this Act and also Section 4 of the Sales Act of May 19 1915, P.L. 543, 69 P.S. § 42,^[1] have definitely ruled that in view of the...