Dupont, Glore, Forgan, Inc. v. Barshack

Smith, J., delivered the opinion of the Court. The sole question presented in this case is whether the appellees, Jack Barshack et al. (the Barshacks), seasonably pleaded limitations. We shall sustain the ruling of the trial judge (Dorf, J.) who concluded that they had. Appellant, duPont, Glore, Forgan, Incorporated (duPont), ³¹⁷ is a stock broker.

Its declaration alleged “that on or about December 24, 1968, the [Barshacks] did purchase from [duPont] 300 shares of Monarch Life Insurance Company for their account”; that “subsequently on December 31,1968, the shares became exchangeable for 375 shares of Monarch Capital Corporation, which the [Barshacks] did accept and subsequently sold on February 26, 1969”; that duPont “did in error maintain in the [Barshacks’] account credit for the 300 shares” of the first named company; that “on or about December 15, 1969, the [Barshacks] instructed [duPont] to deliver their shares in [the first named company] to another broker, which was done on March 30, 1970,” and that at the time the Barshacks directed the delivery of the shares of stock they knew or should have known that the stock was shown to their credit in error, having been previously sold. Suit to recover the value of the stock was filed on May 10, 1973. Summons was issued to the June return day. Thereafter, pertinent dates are as follows: May 21 — the Barshacks filed a demand for particulars.

June 12 — duPont answered the demand for particulars. June 22 — the Barshacks demurred to the declaration, raising the issue of limitations. August 7 — the Barshacks’ demurrer was overruled. August 16 — the Barshacks filed a special plea of limitations.

DuPont filed a motion ne recijnatur to the plea of limitations, contending that since the demurrer raising that point had been overruled, the Barshacks should plead to the merits. (They had filed no general issue plea.) The duPont motion was overruled and judgment for costs was entered in favor of the Barshacks against duPont on the basis of the plea of limitations. 1 ³¹⁸ Maryland Rule 342 d 2 provides that a plea of limitations “must be filed within the time required by Rule 307 (Time for Defendant’s Initial Pleading).” Rule 307 a 1 requires: “ The defendant in any action shall file with the clerk his initial pleading