Scher v. Altomare

⁴⁴¹ Singley, J., delivered the opinion of the Court. On 1 September 1966, Simon Scher entered into a contract, under seal, for the purchase of certain real estate owned by Samuel Altomare and Teresa R. Altomare, his wife (the Altomares). The contract price was $20,000.00, of which $2,000.00 had been paid prior to the signing of the contract; an additional $100.00 was to be paid each month until settlement, which was to be made within six months of the date of the contract, unless an additional $2,000.00 were paid by the buyer, in which event, the settlement date was to be extended for an additional period of six months. In the declaration filed in the Superior Court of Baltimore City on 13 December 1973, Scher alleged that he had paid the Altomares $7,500.00, that the Altomares were unable to give good title to the property, and sought damages in an amount of $7,500.00.

The Altomares filed a general issue plea and specially pleaded res judicata and limitations. The case ultimately came on for hearing on the Altomares’ motion to dismiss, grounded on limitations: that the $7,500.00 paid by Scher had been paid more than three years prior to the institution of suit, and that recovery was barred by Maryland Code (1957) Art. 57, § 1, now Code (1974), § 5-101 of the Courts and Judicial Proceedings Article. Scher countered with the contention that since the contract was under seal, the 12-year period of limitations contained in Code (1957) Art. 57, § 3, now Code (1974), § 5-102 of the Courts and Judicial Proceedings Article, applied. The court took the position that since the action was brought for the return of the deposit, and the contract of sale contained no promise to return the