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.
[ 174 Pa. Super. Page 208]
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
[ 174 Pa. Super. Page 209]
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, ...