Leonard v. Martling

• Decision Date: 18 November 1953
• Citation: 174 Pa.Super. 206,100 A.2d 484
• Parties: LEONARD v. MARTLING et al. Appeal of MARTLING.
• Court: Pennsylvania Superior Court

100 A.2d 484

174 Pa.Super. 206

LEONARD v. MARTLING et al.

Appeal of MARTLING.

Superior Court of Pennsylvania.

November 18, 1953

Action in assumpsit to recover a balance due for dental services performed for one of defendants in reliance on codefendant's alleged oral guarantee of payment therefor. From a judgment of the Municipal Court of Philadelphia County at No. 958 April Term, 1951, E. C. Bonniwell, J., on a jury's verdict for plaintiff against both defendants defendant guarantor appealed. The Superior Court, No. 4 October Term, 1953, Ross, J., held that the complaint alleging an oral promise to answer for the debt or default of another than promisor without alleging facts showing circumstances removing the promise from operation of the statute of frauds, stated no claim on which relief could be granted, so that defendant guarantor's failure to plead such statute until he moved for judgment on the pleadings after the case came on for trial was excused by the civil procedure rule authorizing presentation of such defense by a later pleading than the answer or reply, by a motion for judgment on the pleadings, or at the trial on the merits.

Judgment against defendant guarantor reversed, and judgment entered in his favor.

Thomas W. Maher, Edward Paul Smith, Philadelphia, for appellant.

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

Before RHODES, P. J., and HIRT, RENO, ROSS, GUNTHER and WRIGHT, JJ.

ROSS Judge.

This appeal is based upon the refusal of the court below to enter judgment on the pleadings in an assumpsit action.

Plaintiff John J. Leonard, a dentist, filed a complaint in assumpsit wherein he averred the performance of professional services for the defendant Gerald E. Martling extending over a period of some 14 months; that the defendant Gerald E. Martling paid for part but not all of the said professional services; that ‘ During the course of the aforesaid dental services * * * Harvey B. Martling, a brother of defendant Gerald E. Martling, orally guaranteed Plaintiff that he would pay any charges the Defendant Gerald E. Martling might incur by reason of the said services', and that in reliance on the said oral guarantee, ‘ Plaintiff continued to perform dental services for Defendant Gerald E. Martling’ .

The defendant Gerald E. Martling filed an answer and counterclaim. The answer denied liability on the ground that the work performed by plaintiff was ‘ unsatisfactory’ ; and, in answer to the corresponding paragraph of the complaint, denied knowledge of any ‘ guarantee’ alleged to have been made by the defendant Harvey B. Martling. The counterclaim sought damages arising out of plaintiff's ‘ lack of skill or wrong dental procedure’ .

The answer of the defendant Harvey B. Martling denied that he did ‘ orally or in writing guarantee or state’ to plaintiff that he would pay for services rendered by plaintiff for Gerald E. Martling; and further ‘ that Defendant, Harvey B. Martling never either before, during, or after Plaintiff dealt with Gerald E. Martling, agree with Plaintiff either orally or in writing to be responsible for any debt or debts of Gerald E. Martling to the Plaintiff’ .

Plaintiff filed a reply to the defendant Gerald E. Martling's counterclaim and the pleadings were closed. The case came on for trial in the Municipal Court of Philadelphia County before a judge and jury. Before the jury had been sworn, attorney for defendants stated to the court: ‘ I would like to make a motion for judgment on the pleadings as to Harvey B. Martling in the nature of a statutory demurrer * * *. The reason is the only allegation showing liability is the oral guarantee for the debt of another’ . The motion was dismissed and the trial proceeded.

Plaintiff testified that during the period he was performing services for Gerald E. Martling, the defendant Harvey B. Martling stated to plaintiff that he ‘ would back his brother’, that he, Harvey, ‘ would stand behind Gerry in taking care of the payments'. The defendants made no objection to this testimony. At the close of plaintiff's case the defendant Harvey B. Martling moved for a nonsuit but this motion was refused. The defendant Harvey B. Martling testified with respect to the alleged oral promise to answer for the debt of his brother: ‘ I told Dr. Leonard when I sent my brother to him at first that I would help him out on this bill, that I would render him some assistance. I told Dr. Leonard the same thing when we discussed the unsatisfactory temporary denture, providing Dr. Leonard would make a satisfactory permanent denture.’

From a jury verdict against both defendants and judgment entered thereon, the defendant Harvey B. Martling has appealed to this Court.

The Act of April 26, 1855, P.L. 308, § 1, 33 P.S. § 3, provides, inter alia: ‘ 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.’ Whether a promise is within the statute and thus required to be in writing depends upon the object of the promise as revealed by the form of the alleged promise and the circumstances surrounding the making thereof. If the promise is to answer for the debt or default of another the promise is, of course, within the statute. If, on the other hand, the ‘ main purpose and object of the promisor is, not to answer for another, but to subserve some pecuniary or business purpose of his own, involving either a benefit to himself, or damages to the other contracting party, his promise is not within the statute, although it may be in form a provision to pay the debt of another, although the result of it may incidentally have the effect of extinguishing that liability * * *.’ Eastern Wood Products Co. v. Metz, 370 Pa. 636, 641, 89 A.2d 327, 330; Davis v. Patrick, 141 U.S. 479, 488, 12 S.Ct. 58, 35 L.Ed. 826.We think it clear, in view of this ‘ main purpose and object’ test, that the promise of the defendant Harvey B. Martling to answer for the debt or default of his brother was within the statute and by it required to be in writing.

Pa.R.C.P. No. 1030, 12 P.S.Appendix, provides: ‘ The defenses of * * * statute of frauds, statute of limitations and waiver shall be pleaded in a responsive pleading under the heading ‘ New Matter’ . Any other affirmative defense may be similarly pleaded. '(Italics supplied.) The defendant Harvey B. Martling did not raise the defense of the statute of frauds in the manner prescribed by Pa.R.C.P. No. 1030, 12 P.S.Appendix. The court below held that the defendant lost his opportunity to rely on the statute of frauds by not pleading it.

The defendant takes the position that Pa.R.C.P. No. 1032 saved his right to interpose the defense of the statute of frauds at the trial of the case. Rule 1032 provides, inter alia: ‘ 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 * * *.’ Defendant argues that ‘ because the plaintiff had failed to state a claim upon which relief could be granted’ he was entitled to and did move for ‘ judgment on the pleadings'.

The provision of the Act of May 14, 1915, P.L. 483, comparable to and suspended by Pa.R.C.P. No. 1030 is Section 16 which provides, in part: ‘ Neither party shall be permitted at the trial to make any defense which is not set forth in the affidavit of defense, or plaintiff's reply, as the case may be, * * *.’ 12 P.S. § 452. Under this section the decisions were to the effect that if plaintiff's pleading discloses a contract obnoxious to the statute of frauds, and the defendant denies the making of the contract, the statute is available without being specially pleaded.

In American Products Co. v. Franklin Quality Refining Co., 1923, 275 Pa. 332, 119 A. 414, 415, plaintiff brought an action to recover damages for defendant's alleged breach of an oral contract to supply 5 carloads of oil. Plaintiff had a jury verdict but the lower court sustained defendant's motion for judgment n. o. v. on the ground that the parol contract of sale was within the inhibition of the statute of frauds provision of the Sales Act. Plaintiff, before the opinion was filed, offered to amend averring actual delivery and receipt of a portion of the goods purchased, thus excepting the contract from the statute. No amendment was permitted. The Supreme Court reversed and awarded a venire facias de novo on the ground that plaintiff was prejudiced by defendant's tardy assertion of the defense of the statute of frauds and should be permitted to show that the contract was not within the purview of the statute.

The case is important here because the Court considered timely defendant's assertion of the statute of frauds as a defense even after a verdict for plaintiff. Of even greater importance is the reason for the Court's position as expressed in the following language from the opinion: ‘ It is true certain personal defenses must be affirmatively set up and established, otherwise they are treated as waived so, a failure to expressly aver the fact that the suit is barred by the statute of limitations prevents objection to recovery on this ground (Barclay v. Barclay, 206 Pa. 307, 55 A. 985; Murphy v. Taylor, 63 Pa.Super. 85), and a like ruling has been made where the attempt was to take advantage of the statute...