Appeal, No. 194, Jan. T., 1954, from judgment of Superior Court, Oct. T., 1953, No. 4, reversing judgment of Municipal Court of Philadelphia County, April T., 1951, No. 958, in case of John J. Leonard, D.D.S., v. Gerald E. Martling and Harvey B. Martling. Judgment affirmed. Same case in Superior Court: 174 Pa. Super. Ct. 206. Assumpsit. Before BONNIWELL, J. Verdict for plaintiff and against both defendants, and judgment thereon. Defendant H. Martling appealed to the Superior Court, which reversed the judgment of the court below. Appeal by plaintiff to Supreme Court allowed.
Daniel B. Michie, Jr., with him William C. Hamilton and Fell & Spalding, for appellant.
Thomas W. Maher, with him Edward Paul Smith, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. CHIEF JUSTICE HORACE STERN
We allowed an appeal from the decision of the Superior Court in this case reported in 174 Pa. Superior Ct. 206, 100 A.2d 484. The question involves the proper application of Pa. R.C.P. 1030 and 1032 (1) to an action brought in violation of the Act of April 26, 1855, P.L. 308, "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 ...