Appeal, No. 98, March T., 1958, from order of Court of Common Pleas of Washington County, Aug. T., 1957, No. 243, in case of George F. Taylor v. Benjamin H. Richman. Order reversed.
Edwin O. Lewis, with him Wm. Barclay Lex, George F. Taylor, and Norris, Lex, Hart & Ross, and Taylor, McNaugher & Duerring, for appellant.
Thomas L. Anderson, with him Stephen I. Richman, and Goldfarb & Goldfarb, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen and Mcbride, JJ.
OPINION BY MR. JUSTICE BELL
Plaintiff brought an action of assumpsit against defendant, one of his former partners, for his contribution to an alleged partnership debt, which plaintiff paid. The Court below sustained defendant's preliminary objections and dismissed the complaint, without prejudice to plaintiff's right to file a complaint in equity for this claim.
The question involved is not whether defendant has a just defense to the facts averred in plaintiff's complaint, or whether plaintiff has a valid claim in equity, but whether the facts which plaintiff avers, assuming they are true, state a claim against defendant which is recoverable in assumpsit.
In Gardner v. Allegheny County, 382 Pa. 88, 114 A.2d 491, the Court said (page 94): "Defendants by their 'preliminary objections admit as true all facts which are averred in the bill of complaint but not the pleaders' conclusions or averments of law': Narehood v. Pearson, 374 Pa. 299, 302, 96 A.2d 895. Moreover, when the sustaining of defendants' preliminary objections will result in a denial of plaintiffs' claim,*fn1 or a
dismissal of plaintiffs' suit, preliminary objections should be sustained only in cases which are clear and free from doubt: London v. Kingsley, 368 Pa. 109, 81 A.2d 870; Waldman v. Shoemaker, 367 Pa. 587, 80 A.2d 776."
Plaintiff averred the following material facts which defendant by his preliminary objections admits are true.
"On June 25, 1951, the Plaintiff together with BENJAMIN H. RICHMAN, SIDNEY J. WOLF, A. C. GREEN, RICHARD A. GREEN and CONTINENTAL TRADING COMPANY, a Pennsylvania corporation, as joint adventurers, and OHIO VALLEY STRIP STEEL CORPORATION, a West Virginia corporation, as trustee, executed a written Joint Venture Partnership Agreement, ...