author: Wilner, J.,

text:
    L.M.T. STEEL PRODUCTS, INC. v. DORIS K. PEIRSON et al.
    [No. 648,
    September Term, 1980.]

      Decided February 6, 1981.

      The cause was argued before Gilbert, C. J., and Wilner, J., and Charles E. Orth, Jr., Associate Judge of the Court of Appeals (retired), specially assigned.

      E. Gwinn Miller, with whom was Robert W. Fox on the brief, for appellant.

      Phillips L. Goldsborough, III, with whom were Smith, Somerville & Case on the brief, for appellees Ham and Jones.
   Wilner, J.,

delivered the opinion of the Court.

On September 18, 1975, Roy Webster was involved in an automobile accident from which Doris Peirson suffered substantial injuries. Mrs. Peirson and her husband sued Webster and others in the Circuit Court for Harford County and recovered a rather large verdict. One of the defendants sued was appellant, who was alleged by the plaintiffs and believed by the jury to be Webster’s employer at the time of the accident. Its liability was strictly a vicarious one, emanating from the doctrine of respondeat superior.

Appellant’s contention is a three-fold one which derives in large measure from the fact that Webster was driving his own vehicle at the time of the accident. It argues that: (1) Webster was an independent contractor and not appellant’s employee, this being evident from the overall relationship between the parties; (2) even if Webster was an employee, he was not acting within the course of his employment at the time Of the accident; and (3) even if Webster was then acting in the course of his employment, appellant is not liable because it never expressly consented to Webster’s use of his personal vehicle in performing his duties for appellant. These arguments are made in the context of appellant’s complaint that the court erred in denying its motions for directed verdict and for judgment N.O.V., and in denying as well certain requested instructions to the jury (Nos. 27-30) regarding its vicarious liability. We find no error and shall affirm.

(1) Overall Relationship — Employee or Independent Contractor?

The rules which define the distinction between the relationship of employer-employee and that of independent contractors — which tell us, in other words, when a person is an employee/servant and not an independent contractor — are fairly well settled. As pointed out in B.P. Oil Corp. v. Mabe, 279 Md. 632 (1977), there were originally four elements to be considered in determining the existence of the master-servant relationship, these being "(1) the selection and engagement of the servant, (2) the payment of wages, (3) the power of dismissal, and (4) the power of control of the servant’s conduct.” Sun Cab Co. v. Powell, 196 Md. 572, 577-78 (1951), quoted in Mabe, 279 Md. at 638. In Keitz v. National Paving and Contracting Co., 214 Md. 479, 491 (1957), the Court added a fifth element to be considered — "whether the work is a part of the regular business of the employer.”

As the Court was careful to point out in Keitz, however, and in nearly every case involving this issue decided since Keitz (see, for example, Mabe at 638), these are but indicia of the employment relationship — factors or criteria to look at. Only one of the five has any special conclusive significance; that is element four, the power or right to control, with some immediacy and directness, the alleged servant’s work. If that right of control is present, the relationship is necessarily one of employment, because it negates the independence or autonomy presumed to exist with an independent contractor. As stated in Keitz at 491 and repeated in Mabe at 638:

"The decisive test in determining whether the relation of master and servant exists is whether the employer has the right to control and direct the servant in the performance of his work and in the manner in which the work is to be done... . [I]t is not the manner in which the alleged master actually exercised his authority to control and direct the action of the servant which controls, but it is his right to do so that is important.” (Emphasis in original.)

To some extent, of course, the right of overall control is implicit in all five elements, which is why they are all relevant. The power of dismissal, for example, certainly carries with it the power to control in some measure how the subordinate does his work. The distinction, it would seem, is in the degree to which the power of control, if it exists, is exercised. To have an employment relationship, the "employer” must have some ability, should he care to exercise it, to tell the "employee” what to do and how and when to do it. If there is not this minimal power of control — if the worker’s agreement is to perform the work "according to his own means and methods free from control of his employer in all details connected with the performance of the work except as to its product or result” — the worker is deemed to be an independent contractor and not an employee/servant. Williams Construction Co. v. Bohlen, 189 Md. 576, 580 (1948); Gale v. Greater Washington Softball Umpires Assoc., 19 Md. App. 481 (1973).

A master-servant relationship does not require, however, the actual exercise of minutely or hourly or even daily direct on-site supervision by the employer. Indeed, the more authority an employee has, the less likely such routine supervision will be. The president or vice-president of a company is not likely to be supervised by the board of directors in his every action, but that does not render him less an employee; it does not make him an independent contractor. To one degree or another, this is necessarily true with respect to all persons employed in administrative or supervisory roles.

What the Court seemed to be saying in Keitz, and in previous and subsequent cases, is that if the exercise of direct and immediate supervision is present, there is little need to look beyond it. That will suffice to label the relationship one of employment. But direct and immediate supervision is not the exclusive test; it is not a sine qua non. If it does not exist, the court must still look to see whether the right or power of control is present, which then involves an examination of the other four factors, and perhaps others that might also be relevant to the particular circumstance. This is the legal framework within which we must consider appellant’s contention.

The evidentiary framework governing our review is that restated for us recently in Impala Platinum Ltd. v. Impala Sales (U.S.A.), Inc., 283 Md. 296, 328 (1978). In judging the propriety of a motion for directed verdict (or for judgment N.O.V.), the trial court, and on review this Court, must consider the evidence in a light most favorable to the party against whom the motion is made — in this case the appellees. All conflicts must be resolved and all reasonable inferences must be drawn in their favor.

We may start with a few basic facts that are not in dispute. Appellant is a New Jersey corporation that had been awarded a subcontract on a school construction project in Harford County. It was to supply and install the interior partitions in the North Harford school. Webster had been selected by appellant to superintend the installation.

The only evidence pertaining to the nature of Webster’s relationship with appellant came from Webster, and it was not without some internal contradiction. Several times he identified himself as an employee of appellant. When asked, for example, by whom he was "employed,” he answered, "L.M.T. Steel Products” — appellant. He considered himself appellant’s "foreman” on the job.

Webster said that he had worked for appellant, on and off, since 1964. He had no written contract. On some jobs he was paid by the hour, on others by the week, and on still others by the "foot” — i.e., so much for each linear foot of partition erected. Appellant determined the method of compensation for each job. On this job, Webster was being paid by the foot. Webster stated that the method of compensation had no effect on his duties, the way in which he performed his work.

Webster was not directly supervised on the job. He was given a set of blueprints and he (and the men he hired) installed the partitions supplied by appellant. He hired and supervised the other installers and set their wages, but they were appellant’s employees and were paid with checks drawn on appellant’s payroll account. Webster was authorized to sign the payroll checks on behalf of appellant and did so. A special account was established by appellant in a New Jersey bank for that purpose. Webster also drew a weekly check on that account for his own compensation, to an unincorporated company he had "registered” — a company known as "VIP” — but gave no explanation for that procedure. No ordinary payroll deductions were made on his checks. Webster never acquired a contractor’s license in Maryland, either in his name or that of any company. He acknowledged that he could be "terminated” by appellant if it didn’t like the way in which he did his work.

Some aspects of the relationship, as Webster described it, would be consistent with a finding that he was an independent contractor; but most aspects support the conclusion that he was a supervisory employee for appellant — the general foreman on the job. The evidence most favorable to appellees would clearly establish at least four of the five criteria or elements mentioned in Keitz; only the exercise (but not necessarily the power) of direct supervisory control is lacking. But given the nature of Webster’s duties — overall jobsite responsibility — that is, as we have said, by no means fatal. At the very least, it was a proper issue for the jury to resolve.

(2) Was Webster in the Course of his Employ_ment at the. Time of the Accident?_

Webster testified that, at the time of the accident, he was on his way from the jobsite to a diner to use a public telephone in order to call appellant’s home office on a job-related matter. He indicated at one point that the call, which ultimately was made, may have been to relay information necessary for preparation of the weekly payroll for appellant’s employees on the job. The accident occurred on a Thursday, and the evidence suggested that the workers were to be paid the next day. Webster said that, although there was a telephone at the jobsite, it was in use with several people waiting, and for that reason he drove the seven miles to what he thought was the next nearest public telephone.

None of this was contradicted by other evidence, and it would clearly suffice to show that Webster was in the course and scope of his employment — in furtherance of appellant’s business — when driving to the diner.

(3) Appellant’s Consent to Webster’s Use of His Personal Vehicle

The question of whether, and under what circumstances, an employer is vicariously liable for injuries arising from accidents caused by an employee while driving his own vehicle is not new in Maryland. It seems to have been first considered in Goldsmith v. Chesebrough, 138 Md. 1 (1921), where the Court acquitted the employer of any responsibility.

Though not clearly articulated until several years later in Henkelmann v. Metropolitan Life Insurance Co., 180 Md. 591 (1942), one basic principle applied in Goldsmith and in the intervening cases of Regal Laundry Co., Inc. v. A. S. Abell Co., 163 Md. 525 (1933) and Great Atlantic & Pacific Tea Co. v. Noppenberger, 171 Md. 378 (1937) is that, in such a situation the Court must look beyond the general employment (master-servant) relationship from which vicarious liability generally arises. Even assuming that the culpable actor was an employee and that he was, at the time of the incident, engaged in his employment duties, it seems clear that, at the very least, the Court must nevertheless examine whether the particular instrument used by him to carry out those duties — to wit, the employee’s personal automobile — was approved or consented to by the employer. A question left somewhat open by the cases is the degree to which the employer must also have the right to control the manner in which that personal vehicle is used by the employee.

In Goldsmith and in Henkelmann, the employee was a salesman/collector on his way, in his own vehicle, to his assigned "territory” when the accident occurred. A car was not necessary to the performance of his duties and the employer had never consented to or authorized the use of a personal vehicle either to travel to or from the assigned territory or while working within it. In Goldsmith, the Court stated the applicable rule thusly, quoting from Labatt’s Master and Servant, 2d ed., p. 6888 (see 138 Md. at 8):

" 'If the other circumstances involved in a case are consistent with, or require, the inference that the tort complained of was within the scope of the servant’s employment, the mere fact that the instrumentality which occasioned the plaintiffs injury did not belong to the master will not preclude him from recovering damages. The action is deemed to be maintainable or not maintainable, according as his use of the instrumentality was or was not authorized, expressly or impliedly, by the master.’ ” (Emphasis in original.)

The relevant criterion stated in Goldsmith was authorization; nothing was said about controlling the use of the vehicle. In Noppenberger the Court broadened a bit the nature of the requisite express or implied consent. Omitting citations, the Court said at pp. 391-92 of 171 Md.:

"The servant may also act within the scope of his employment in using an instrumentality not expressly authorized to effect a result which he has been ordered by the master to accomplish, where the means to be used are not specified . .. and no other means of obeying the order are available.... For, if 'the master directs a servant to accomplish the result and does not specify the means to be used, the servant is authorized to employ any usual or suitable means’.... And the authority to use the instrumentality may be implied from the necessity.” (Emphasis supplied.)

Henkelmann coalesced these principles, but introduced some rather broad language about controlling the use of the vehicle. At p. 599 of 180 Md., the Court observed:

"It is now held by the great weight of authority that a master will not be held responsible for negligent operation of a servant’s automobile, even though engaged at the time in furthering the master’s business unless the master expressly or impliedly consents to the use of the automobile, and that [sic, he] had the right to control the servant in its operation, or else the use of the automobile was of such vital importance in furthering the master’s business that his control over it might reasonably in [sic, be] inferred.” (Emphasis supplied.)

The actual tortfeasor in Henkelmann was an insurance agent whose function was to sell "industrial” insurance policies and to collect premiums on his debit in certain assigned areas; and, in judging the liability of his principal/employer — the insurance company — the Court became enmeshed in the subtle distinctions and similarities between the principal/agent relationship, on the one hand, and the master-servant relationship on the other. It was in that context that the Court went on to say, at 601:

"Of course, even an agent may be subject to the control of his principal in respect to some portion of the work to be performed, and under such circumstances the doctrine of respondeat superior can be invoked. But it has been distinctly held that the doctrine applies in such a case only when the relationship of master and servant existed in respect to the very thing from which the injury arose.... We accept the principle adopted by the great weight of authority that an insurance company is not liable for an agent’s negligent operation of an automobile, where the company has no control over the method and means adopted by the agent in the performance of the work, but is interested only in the results accomplished.” (Citation omitted.)

Also relevant here is Regal Laundry Co. v. Abell Co., supra, 163 Md. 525. The tortfeasor there was a newspaper reporter assigned generally to cover a political campaign. This required him to follow the candidates around and attend meetings and events in different parts of the State; and, with his editor’s knowledge, he used his own car as transportation, for which the newspaper reimbursed him. The accident in question occurred while the reporter was en route from a political event in Salisbury,' which he covered for the newspaper, to his office in Baltimore, where he was to receive further assignments. Relying almost entirely upon the principles announced in Goldsmith, the Court reversed a directed verdict in favor of the newspaper. The fact that the employer knew the reporter was using his automobile in carrying out his assignments and agreed to reimburse him for that use sufficed to establish an implied authorization even though there was no evidence that the newspaper had or purported to exercise any control over the details and manner of the reporter’s transportation in general or his driving in particular. See also Maryland Casualty Co. v. Sause, 190 Md. 135 (1948).

None of these cases are directly on point; each has an element or two not present here. But they do seem to support the conclusion reached by Judge Chesnut in Paly v. United States, 125 F. Supp. 798, 806 (D. Md. 1954), aff’d 221 F.2d 958 (4th Cir. 1955), that "[t]he principle that is applied throughout is whether on the particular facts the employee was authorized by the employer, either expressly or impliedly, to use his automobile in the performance of his duties,” rather than the characterization of Henkelmann by Judge Sobeloff in Cooner v. United States, 276 F.2d 220, 227 (4th Cir. 1960), as suggesting that the master have "the right to control the details and manner of the servant’s driving” in order to assume vicarious liability. See in general Annot., Employee Driving Own Car Liability, 52 ALR2d 287.

Henkelmann, it is true, can be read in the manner Judge Sobeloff suggested; but where the underlying relationship is one of master-servant and not something less (such as independent contractor, principal/agent, or some hybrid), we do not believe that the Court of Appeals intended such a stringent rule to prevail. That would serve to ignore the concepts announced and applied in Noppenberger and Regal Laundry and to mandate a degree of particularized control not required with respect to any other type or aspect of vicarious liability emanating from the employment relationship. If the employer has, expressly or impliedly, authorized the employee to use his personal vehicle in the execution of his duties, and the employee is in fact engaged in such endeavors at the time of the incident, that ought to suffice. Whatever theory may be used to support the underlying doctrine of respondeat superior, it would not be offended by that principle.

Upon this basis, we think that the evidence did suffice to show at least an implied authorization by appellant to use his personal vehicle in the pursuit of his duties. Webster had plenary responsibility for seeing to thé installation of the partitions, and appellant was aware not only that a vehicle might be required in order to carry out that responsibility but that Webster would be using his vehicle (as he had in the past) for that purpose. From their past dealings, if not from necessity, authorization may be inferred.

(4) Jury Instructions

Our analysis of the evidentiary issue also controls the resolution of appellant’s complaints about the denial of its four requested jury instructions. Some of the requests were fairly covered by the court’s actual charge to the jury; others were either not correct expressions of the law, given the circumstances of this case, or amounted to abstract principles of law for which no instruction was required. The court, in any event, correctly instructed the jury as to the criteria it was to consider in determining the nature of Webster’s relationship to appellant; and we therefore find no error.

Judgment affirmed; appellant to pay the costs.

      . Webster had, from time to time, done work on an independent contracting basis under the name of Cyclone Steel, Incorporated. He did not use that corporation in this joh, however.

      . See Md. Ann. Code art. 56, § 180.

      . See Henkelmann at 598-99 of 180 Md., where the Court iterated a number of theories previously espoused to support the doctrine.


source: Caselaw Access Project

author: Couch, J.,

license: Public Domain

text:
    ODYSSEY GLASS CORPORATION v. ALFRED SIMENAUR
    [No. 672,
    September Term, 1980.]

      Decided February 6, 1981.

    The cause was argued before Morton, Melvin and Couch, JJ.

      James K. Foley for appellant.

      David R. Kuney, with whom were Gary I. Squire and Aronoff, David, Harvey, Hagner & Kuney on the brief, for appellee.
   Couch, J.,

delivered the opinion of the Court.

On November 23, 1977, the appellant Odyssey Glass Corporation (Odyssey) and the appellee Alfred Simenaur entered into a five-year lease agreement (Lease), term commencing on January 15, 1978. The leased real property is located at 5218 Monroe Place, Hyattsville, Maryland and consists of .702 acres of land improved by an office/warehouse building.

Paragraph 25 of the Lease states:

"25. OPTION TO PURCHASE. The lessee shall have the exclusive option to purchase PARCEL "Q”, of which the demised premises are a part, during the first eighteen months of this lease for a price of TWO HUNDRED SIXTY FIVE THOUSAND and 00/100 DOLLARS, ($265,000) All Cash, or during the period of July 15, 1979 to July 15, 1980 for a price of $278,250.00 All Cash.”

Odyssey notified Mr. Simenaur, by letter dated July 12, 1979, that:

"Pursuant to paragraph 25 of the lease Odyssey Glass, Inc., leasee [sic] hereby exercises its option to purchase Parcel Q of which the above property is a part pursuant to the terms therein.
Please submit a formal contract at your earliest convenience, settlement to be held sixty (60) days from the date hereof.
If you have any questions, please contact our attorney, James K. Foley, at 589-5750.
Check in the amount of $2,500.00 (Two thousand five hundred dollars) enclosed as DEPOSIT for said purchase.
ODYSSEY GLASS, INC.”

Mr. Simenaur’s realty agent acknowledged receipt of Odyssey’s letter and deposit on July 12,1979. The appellee, however, advised Odyssey, by letter dated July 13, 1979, that the price of the subject property would be $278,250.00 unless full settlement occurred on or before July 15,1979, in which case the price would be $265,000.00. The deposit check was eventually returned to Odyssey.

Correspondence between the parties during subsequent weeks failed to remove the impasse concerning the purchase of the leased property. The appellant believed that the option to purchase had been properly exercised by notification. The appellee insisted upon payment of $265,000.00 on or before July 15, 1979, or payment of $278,250.00 on or before July 15, 1980.

On July 31, 1979, Odyssey filed a suit in equity seeking a declaratory judgment that it had properly exercised the option on July 15, 1979 entitling Odyssey to purchase the property for $265,000.00. Additionally, Odyssey sought a court order requiring the appellee to convey the property and to pay damages to the appellant. On October 23, 1979, the appellant filed a motion for summary judgment on all issues but damages, alleging that it properly exercised the option to purchase. The appellee opposed appellant’s motion and filed a cross-motion for summary judgment, contending that the lease provision required payment of the purchase price, and not mere notice of intent.

On December 3, 1979, the motion and cross-motion were argued in the Circuit Court for Prince George’s County. The trial court denied appellant’s motion for summary judgment, and granted appellee’s cross-motion. Final judgment was entered on May 1, 1980, dismissing Odyssey’s suit with prejudice.

On appeal Odyssey asks:

I. Did the trial court err in granting the appellee’s cross-motion for summary judgment, and in dismissing the appellant’s case with prejudice?
II. Did the trial court err in holding that the appellant had not properly exercised the option to purchase the real estate pursuant to the terms of the option, and in denying the appellant’s motion for summary judgment?

For the reasons set forth in this opinion we hold that the trial court did not err in any of its rulings in the present case.

I. Granting of the appellee’s cross-motion

In its motion for summary judgment filed on October 23, 1979, the appellant stated "that there is no genuine dispute between the parties as to any material fact.” In support of its motion Odyssey cited Katz v. Pratt Street Realty, 257 Md. 103, 120, 262 A.2d 540 (1970), for the proposition that "where the language of the option is clear and unambiguous, the true test of what is meant is not what a party to the contract intended it to mean but what a reasonable person in the position of the parties would have thought it to mean.”

In its brief Odyssey renounces its previous positions concerning the existence of a dispute as to material facts, and concerning an ambiguity in the Lease. The appellant now argues that the trial court erred in granting the appellee’s cross-motion and dismissing the appellant’s case without hearing evidence on the issue of when settlement should have taken place for purchase of the subject property. The appellant contends that the option provision of the Lease is ambiguous because the provision fails to state that settlement must have occurred on or before July 15, 1979 in order for the appellant to purchase the property for $265,000.00.

After our review of the pleadings and the hearing transcript we find that the appellant has not previously alleged that the Lease’s option provision is ambiguous. To the contrary, the appellant relied on the clear language of Paragraph 25 in support of its own motion for summary judgment. At the hearing on December 3, 1979, Odyssey argued, albeit unsuccessfully, that the terms of the option provision supported the interpretation that by notification the option could be replaced by an executory bilateral contract. The appellant did not attempt to introduce testimony concerning the intent of the parties toward the Lease. In fact, the trial court sustained Odyssey’s objection when counsel for the appellee tried to introduce an affidavit which related the parties’ intentions.

Thus the clarity of the option provision was not specifically addressed by the trial court in its rulings or its written opinion. Nevertheless, the trial court, by its decision to interpret the provision, implicitly found the language to be unambiguous. Bankers & Shippers Ins. v. Urie, 38 Md. App. 232, 240, 380 A.2d 243 (1977), cert. denied, 282 Md. 729 (1978). When, as here, the terms of a lease are unambiguous, the trial court should state its interpretation of the lease through a declaratory judgment, or a directed verdict. H & R Block, Inc. v. Garland, 278 Md. 91, 359 A.2d 130 (1976). Because the trial court found no ambiguity in the Lease, there was no need for additional evidence as to the intent of the parties. Likewise there is no need for us to apply the various rules concerning extrinsic evidence that are suggested by the appellant. Walker v. Associated Dry Goods Corp., 231 Md. 168, 189 A.2d 91 (1963).

Nothing in the record leads us to disagree with the trial court’s action in granting appellee’s cross-motion for summary judgment, and in dismissing the appellant’s case with prejudice. Washington Homes v. Interstate Land Development, 281 Md. 712, 382 A.2d 555 (1978).

II. Exercise of the Option to Purchase

Odyssey states in the second argument in its brief that the "language of the option is clear, there is no requirement that the exercise of the option by the plaintiff [Odyssey] required the tender of the purchase price prior to July 15, 1979; nor does it state that settlement must be had on or before July 15, 1979.” The appellant then argues that in the absence of a specific option provision requiring settlement within a definite time, time is not of the essence in the contract formed by the exercise of the option, and the parties need only settle within a reasonable time.

Having heard the appellant’s contention, the trial court found that Odyssey had not properly exercised its option to purchase the leased property. Thus no contract for the sale of the property was ever formed, and no contract was subject to specific performance. The trial court ruled that in order to be effective, an option must be performed strictly according to its written terms. Straley v. Osborne, 262 Md. 514, 278 A.2d 64 (1971). The trial court focused on the option’s terms which granted Odyssey an "exclusive option to purchase” the subject property during a specified time period for a set amount "all cash”. By these terms Odyssey’s purchase of the property for $265,000.00 depended upon how soon Odyssey chose to exercise its option to purchase, and that proper exercise required tender of the set amount "all cash”. It "seemed logical” to the trial court that the Lease restricted the time period that the property would be available for $265,000.00 in order to encourage the appellant to purchase the property. This purpose would be frustrated, according to the chancellor’s opinion, if the appellant could obtain the discount price by notification of intent, and then delay the tender of the purchase price.

The appellant requests that we look beyond the terms of the Lease, and apply the "general” principle that notice of acceptance and a willingness to perform constitute proper exercise of an option. Supporting this proposition Odyssey cites Straley, supra, and Foard v. Snider, 205 Md. 435, 109 A.2d 101 (1954). By our reading of these Maryland cases, and by their application to the specific terms of Paragraph 25, we hold that the appellant did not properly exercise its option to purchase.

In Straley, supra, the Court of Appeals held that a lessee with a first option to purchase the leased property did not properly exercise the option by merely offering to purchase the property for less than its apparent value. The Court in Straley, supra, 262 Md. at 521, quoted its earlier definition of an option as:

"* * * a continuing offer to sell during the duration thereof which on being exercised by the optionee becomes a binding and enforceable contract. * * * And when the optionee indicates an intention to exercise the option and tenders the amount of the purchase price, he has performed under the option and is entitled to specific performance. Diggs v. Siomporas, 248 Md. 677, 681, 237 A.2d 725, 727 (1968).” [Emphasis added.]

In Foard, supra, 205 Md. at 446, 447, the Court of Appeals discussed the proper exercise of an option, and that discussion supports both parties in the present case. In dicta Judge Hammond said:

"A question more difficult to answer, had the appellees relied on the point, would be whether Albert Foard did exercise the option within six months’ period specified in it. Time is of the essence in a unilateral contract, such as an option, both in law and in equity, whether expressly declared to be so or not. Williston on Contracts, Rev. Ed., Sec. 853; Pomeroy, Equity Jurisprudence, 5th Ed., Vol. 4, Sec. 1408; Maughlin v. Perry, 35 Md. 352. Each such agreement must be scrutinized to see what it requires to be done within the specified time, either expressly or by necessary implication. Does it require completed performance, that is, actual payment, or does it require tender of the agreed price? Generally, there is contemplated only a notice of acceptance of, and a readiness and willingness to perform, the irrevocable offer which is an option. Whatever the option requires must be done. As in the case of all offers, revocable or irrevocable, the exercise must be unconditional and in exact accord with the terms of the option. For holdings that there must be a tender within the stated time, see Williston, work cited, Sec. 853, p. 2390; Pomeroy, work cited, Sec. 1407a (3), p. 1052; Coleman v. Applegarth, 68 Md. 21, 28. On the other hand, it has been held that: '* * * the option is a continuing offer to sell and, when duly accepted by the optionee, becomes a definite contract mutually binding and enforceable. * * * When an optionee duly signifies his purpose to accept an option for the purchase of real estate, and tenders the amount of the purchase price if required, he is entitled to specific performance of the contract. The objection that the original agreement was lacking in mutuality is without merit, for when the optionee exercises an option the agreement becomes binding upon both parties.’ (Emphasis supplied). Trotter v. Lewis, [185 Md. 528, 534, 45 A.2d 329 (1946)].”

The Court in Foard, however, expressly declined to decide whether a tender was essential or notice of acceptance would suffice to exercise the specific option to purchase in that case.

The Court of Appeals in Diggs, supra, affirmed a lower court’s decision that the holders of a real property option were entitled to specific performance after they exercised the option within the required time by tendering the purchase price. The Court relied on its previous rulings that granted specific performance to optionees who signified their acceptance of options to purchase real property, and tendered the purchase price if required. Trotter v. Lewis, supra, which cited Brewer v. Sowers, 118 Md. 681, 86 A. 228 (1912).

A decree for specific performance was upheld by the Court of Appeals in Brewer, supra, because a landowner deliberately evaded the holder of an "option to buy” during the option period, while the holder attempted to tender in cash the required percentage of the purchase price. Chief Judge Boyd stated at 118 Md. at 688:

"In Brantly on Contracts, page 330, the rule is thus announced: 'When the option is given for the purchase of land, if the holder of it duly signifies his purpose to buy, or tenders the price, if that be required, he is entitled to specific performance of the contract, and it is no objection that the original agreement was lacking in mutuality or was not signed by the promisee. When he exercises the option, the agreement becomes binding upon both parties, and either may demand specific performance or sue for damages for a breach of the contract.’ ” (Emphasis added).

Earlier Maryland authority concerning a tendering requirement appears in Stansbury v. Fringer, 11 G. & J. 149 (1840), in which the Court of Appeals affirmed a decree for specific performance based on a rental agreement permitting the lessee "to purchase said land any time within the said term of rent” for a fixed price. The Court found that the lessee properly tendered the full price and was therefore entitled to the bargain.

In Coleman v. Applegarth, 68 Md. 21, 11 A. 284 (1887), however, the Court of Appeals refused to grant specific performance for the sale of land. The appellant obtained an option which read:

"For and in consideration of the sum of $5 paid me, I do hereby give to Charles Coleman the option of purchasing my lot of ground,... at and for the sum of $645 cash, at any time on or before the 1st of November, 1886.” Id. at 26.

The Court ruled that this option was not properly exercised because Coleman failed to tender the price within the specified time. The Court in Coleman relied in part on Maughlin v. Perry, 35 Md. 352 (1872), in which a "covenant to sell” real property was ordered specifically performed despite the purchasers’ nonpayment of the required purchase price. The Court found that the purchasers properly notified the landowner of their intent to purchase, only to learn that the land had been sold to a third party. Judge Stewart ruled that:

"The circumstances referred to, after the execution of the contract, rendered such a step Ti-e., specific performance] advisable, and certainly afford a sufficient excuse for the non-payment of the money, after they had accepted the terms proposed arid tendered himself ready to pay in the manner indicated.” Id. at 360.

More than a century later the decision in Maughlin v. Perry would still provide authority for the proposition that a tender is not necessary if it would be futile. Nusbaum v. Saffell, 271 Md. 31, 39, 313 A.2d 837 (1974).

The trial court found no Maryland cases interpreting a lease option provision substantially the same as Paragraph 25. The trial court relied on Hurd v. Cormier, 358 Mass. 736, 267 N.E.2d 116 (1971), in which the Massachusetts Supreme Judicial Court held that optionees in that case were required to tender the purchase price in order to exercise their option. Mere notification in writing did not entitle the optionees to specific performance. The Hurd decision, and the case of Lau v. McKechnie, 202 Mich. 284, 168 N.W. 438 (1918), also relied on by the trial court, are discussed in the extensive annotation concerning the necessity for payment in order to exercise an option found at 71 ALR3d 1201, et seq. The Court of Appeals in Bio-Ramo Drug Company, Inc. v. Abrams, 229 Md. 494, 184 A.2d 831 (1962), reversed the chancellor’s orders sustaining demurrers to a suit for specific performance of a lessee’s option to purchase the leased property. The agreement in that case, however, did not include a time-price differential, and allowed settlement to occur up to 120 days “after election to so purchase” had been given. The Court found that the specific option could be properly exercised by a definite statement of intention coupled with a demand for settlement. Judge Horney added that:

“Actual tender of the purchase price by the tenant was not required under the circumstances since it is apparent that a tender would have been futile.” Id. at 502.

More recently we decided in Young v. Cities Service Oil Co., 33 Md. App. 315, 319, 364 A.2d 603 (1976), that an option to purchase leased property had been properly exercised by notice of intention and the tender of a deposit check in accordance with the particular procedure permitted under the option agreement.

The present case, of course, must be determined on the basis of its own specific circumstances and the interpretation of Paragraph 25. Nothing in the pleadings indicates that the appellant’s tendering of the purchase price within the set time period would have been futile. To the contrary, the appellee’s rapid response to the appellant’s letter of intent indicates Mr. Simenaur’s willingness to sell the property for the discount price, so long as the transaction could be completed on or before July 15,1979. Nothing indicates that the chancellor erred in his interpretation of the option to purchase provision. We cannot say that he was wrong in finding that the proper exercise of the option to purchase required tender of payment during the option period.

Judgment affirmed.

Costs to be paid by appellant.

      . This request was apparently intended to be a prayer for specific performance.

      . This annotation cites cases from Tennessee, Massachusetts, Michigan, Texas, and Wyoming as authority for the rule that when an option provides the right "to purchase” real property, the use of that phrase indicates that the option’s exercise must be accomplished by payment of the purchase price, absent contradictory terms. 71 ALR 3d at 1252. The only contrary case cited is Pennsylvania Min. Co. v. Martin, 210 Pa. 53, 59 A. 436 (1904), in which the court determined that a tender requirement was not in harmony with other provisions of an option for "buying” coal.
      See also Floyd v. Morgan, 4 S.E.2d 91 (Ga. App. 1939), and Graney v. United States, 258 F. Supp. 383 (S.D.W. Va. 1966), aff'd, 377 F.2d 992 (4th Cir. 1967), cert. denied, 389 U.S. 1022 (1967), in which payments were conditions precedent to the exercise of options.


author: Lowe, J.,

text:
    DENNIS WISE v. STATE OF MARYLAND
    [No. 674,
    September Term, 1980.]

      Decided February 6, 1981.

      The cause was argued before Gilbert, C. J., and Moore and Lowe, JJ.

      Howard L. Cardin for appellant.

      Stephen Rosenbaum, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Leslie Stein, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

Dennis Wise has appealed his conviction of the first degree murder of James Reid after having been tried by a jury in the Criminal Court of Baltimore. Wise had previously been indicted for having conspired to murder, and for having murdered, James Reid in Baltimore City. He had also been charged with having conspired (in Baltimore City) to murder B. A. Addison in New York City. Whether appellant consummated that act in New York has yet to be determined although appellant agreed to waive extradition at the conclusion of his Maryland problems.

The State’s theory was that Mr. Wise’s conspiracies were in the nature of contracts to kill and that in these two instances he fully performed. It believed that Mr. Wise had been hired by one Gilbert Wiley to kill the victims because they had raped and robbed Derochea Leak, a girlfriend of Wiley who was a major narcotics dealer and who kept much of his profit in the .apartment he rented for her. At least one of the victims, along with two unidentified persons, went to the apartment to steal both drugs and profits and inferentially also intending to assault Ms. Leak, which they did.

'Wiley and Leak then contacted an acquaintance, Harry Lockwood, presumably to have Lockwood find the perpetrators of the crimes. As to Addison he succeeded, notifying Wiley that Addison was in New York. The next day appellant arrived in New York, told Lockwood that "Gil sent me” and shot Addison after Lockwood had pointed him out.

It did riot appear, however, that Wiley had used Lockwood as a middleman in disposing of Reid. Reid was killed not for his actual participation in the theft and assault, but rather because he was suspected by Wiley of having planned it. Apparently, the deaths of both were arranged at about the same time and for the same underlying reasons.

. , The two conspiracy cases were tried and concluded in September of 1979. The Reid murder case was also commenced at that time. The trials of Wise were joined with those of Wiley, obviously because they were allegedly the contracting partners in both instances and thus, the primary conspirators. Ms. Leak, who was to testify for the State, became the vortex of a plethora of procedural and evidentiary problems even before the trial actually commenced, and so remained throughout since her testimony regarding the conspiracies was essential — but admissible only if she were a conspirator.

When the cases were called, among the pending defense motions were those to sever the Reid and Addison conspiracy charges. Yet when appellant raised the severance issue prior to jury selection, he could not decide whether to fish or cut bait. He conceded that

"... at this point we are not entitled to a severance because we have no grounds that we can give the court to indicate, as such, a severance.”

Because of a conversation with Ms. Leak, however, he expressed the conviction that the State’s evidence would show that rather than there having been two conspiracies to kill two people, there was in fact but one conspiracy to kill two people and that, somehow, this would entitle him to a severance at the end of the State’s case for which he contended he could not be retried upon the second case for double jeopardy reasons. He suggested that the court defer its ruling until the end of the State’s case, as was done in Ellerba v. State, 41 Md. App. 712, 728, cert. denied, 285 Md. 729, 734 (1979). Hesitantly, although seemingly. acquiescently, the trial judge formally denied the severance on the information he had at that time, but suggested that counsel was free to renew the motion at the end of the State’s case if it felt it proper to do so in light of the evidence elicited.

At the end of the State’s case it was Ms. Leak’s testimony that again brought on procedural and evidentiary difficulties. The first of a series of defense motions was to "suppress” Ms. Leak’s testimony as hearsay evidence of the conspiracies, without which the State conceded it had no case. The State stood upon the premise that her testimony was admissible because she was a part of the conspiracy, i.e., a "co-conspirator.” After substantial agonizing, the court held that there was sufficient evidence to indicate that she had conspired in the death of Addison, but, while privy to the plan to kill Reid, there was no evidence that she had participated in his negotiated departure. Her testimony, as it related to the Reid conspiracy, was therefore "suppressed.” There followed defense motions for judgment of acquittal in all cases, but only one was granted, i.e., as to the Reid conspiracy — there having been insufficient evidence without Ms. Leak’s testimony. Appellant then moved for mistrial of both the Addison conspiracy and the Reid murder. The court denied these motions. Immediately appellant moved to sever the two charges remaining against appellant, that is, conspiracy to murder Addison and the murder of James Reid. Because they were separate and distinct crimes, the court granted the motion.

Acknowledging that he may have been somewhat premature because the State had not been called upon to elect where it "was going with the case,” appellant then revived his motion for mistrial:

"... the specific reason for the renewal of the motion for mistrial is that if the State proceeds on the Addison conspiracy, then the evidence the jury heard this morning, I would submit is completely inadmissible, that is, statement about the murder of Reid and the res gestae statement of Dale Streams which came in through Officer Mallinoux, I believe would be absolutely inadmissible. If on the contrary the State elects to proceed with the murder of Mr. Reid, then I believe that the testimony of Mr. Lockwood would be completely inadmissible in that case, and as such I believe that no matter which case the State would elect to pursue at this time that there has been evidence produced, a significant amount of evidence, prejudicial evidence that no curative instruction could remove this prejudice from the jury, and in such the Court should grant the mistrial.”

The court again denied the motion but called upon the prosecutor to "elect which of the two charges against Mr. Wise he want[ed] to proceed with.” Because it was more reasonable to keep both alleged conspirators in the same trial (i.e., Wiley and Wise), the State chose to proceed with the conspiracy to kill Addison. While it would seem that the evidence of the Reid murder previously produced by the State might have prejudiced the jury against appellant in the Addison conspiracy, it obviously did not because on September 27,1979, the jury found appellant not guilty of so conspiring.

On October 15,1979, appellant moved to dismiss the Reid murder charge on grounds of double jeopardy, among others. The motion was heard and denied on January 23, 1980, and the case was set for trial and tried on March 11, 1980, 30 days having been provided appellant in which to appeal the double jeopardy denial.

From the time of his arrest on March 6, 1979, appellant repeatedly sought a speedy trial individually and through diligent efforts of his attorney. He asserts a denial of that constitutional right as an issue on appeal here, just as he contends that his conviction was improper as he was twice exposed to jeopardy. Neither of those direct assertions of constitutional violation gives us but slight pause under the facts of this case.

—collateral estoppel—

The primary issue raised by appellant is an amalgam of evidentiary and constitutional issues, and as indicated below, it again focuses on Derochea Leak. Her testimony was crucial not only to prove that Wise killed Reid, but also that he did so premeditatedly. She was to testify primarily about conversations with Gilbert Wiley regarding his having hired Wise to kill Reid, then circumstantially support that hearsay with her own observations, as would the State with other evidence. But such conversations were inadmissible hearsay unless they could come in through some exception to the hearsay rule.

The State proffered two exceptions to avoid the hearsay stymie. It contended that Ms. Leak was a co-conspirator together with Wiley and Wise; however, the Reid conspiracy acquittal was expressly predicated upon a finding by the trial judge as a matter of law that she was not a conspiratorial participant in the Reid case. Furthermore, since a jury had acquitted Wise of conspiracy to kill Addison in New York, the "ultimate fact” that there was no conspiracy could not be relitigated. Powers v. State, 285 Md. 269, cert. denied, 444 U.S. 937. This is precisely what the trial judge hearing the murder case ruled preliminarily, and the record indicates he carried out his resolve. No hearsay evidence was offered, or if offered, it was not admitted.

Appellant does not assert any violation of the hearsay rule; however, he sought before and during the murder trial to preclude any evidence which had been introduced in the previous conspiracy trials.

"But the Court left one little phrase out that bothers me. That is why I am asking the Court now for a more explicit ruling. The Court indicated the State cannot bring in hearsay. I understand that.
My suggestion or my argument is the State cannot bring in any evidence of the conspiracy either, that that has already been litigated between the parties and therefore cannot be brought in.
Now, the question or the point I am coming to is the robbery, for example, of Derochea Leak. That is all part of a conspiracy. Whether she was robbed or not has nothing to do with whether Mr. Wise killed Jamey Reid other than to show the beginning of a conspiracy between Wise and Wiley. That is Derochea Leak is attacked, Wiley then hires Wise.
They have been acquitted of that. Therefore in my opinion and what I am arguing to the Court, there can’t be any reference to that. That issue has been litigated. There can be no reference to that conspiracy. Not just the hearsay exception, but any reference to it whatsoever.”

He now embellishes his objections upon appeal by contending that the doctrine of collateral estoppel — "kissin’ cuzzin” to res judicata — precluded any evidence which had been considered by the acquitting jury. This argument is predicated upon the gist of Ashe v. Swenson, 397 U.S. 436, 443 (1970), which is that:

" 'Collateral estoppel’ ... means simply that when an issue of ultimate fact has once been determined by a valid and! final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.”

The decision in Ashe v. Swenson, which incorporated collateral estoppel into the constitutional protection against double jeopardy, raises the question of whether double jeopardy precludes the evidentiary use of crimes for which there has been a prior acquittal, or whether the doctrine applies only in situations of reprosecution. Although one might read "intimations” into Ashe v. Swenson that the constitutional incorporation of collateral estoppel goes beyond reprosecution, the fact situation presented in that case related solely to reprosecution and did not stretch the constitution further into the field of evidence.

At least two federal circuit courts of appeal appear to have held that the Constitution demands the exclusion of evidence of crimes of which the defendant has been acquitted: Wingate v. Wainwright, 464 F.2d 209 (5th Cir. 1972), and United States v. Mespoulede, 597 F.2d 329 (2d Cir. 1979). But both of these cases stress the relitigation of an issue decided theretofore in an accused’s favor. Wingate could perceive no distinction in quality between relitigating an "ultimate” fact and an "evidentiary” fact which had been once decided in an accused’s favor. Id. at 213-14. Significantly, its reasoning followed expressly Judge Friendly’s language in United States v. Kramer, 289 F.2d 909 (2d Cir. 1961), which stated that:

" 'The Government is free within the limits of the Fifth Amendment,... to charge an acquitted defendant with other crimes claimed to arise from the same or related conduct; but it may not prove the new charge by asserting facts necessarily determined against it in the first trial, no matter how unreasonable the Government may consider that determination to be.’ ” Wingate, supra at 214, quoting from Kramer, supra at 916. (Emphasis added).

Although some jurisdictions have held that the theory underlying res judicata is confined to ultimate facts and does not extend to evidentiary ones, e.g., State v. Thompson, 241 Iowa 16, 39 N.W.2d 637 (1947), Maryland has never decided specifically whether collateral estoppel goes beyond multiple or fragmented prosecutions. See generally Annot., 9 ALR3d 203, 228 et seq. (1966). A recent and exhaustive case from the Court of Appeals (Powers v. State, supra) while not deciding the question, clearly indicates that it will interpret Ashe v. Swenson, supra, as not distinguishing between ultimate facts and evidentiary facts for purposes of relitigation. We hasten to caution, however, that the same case also clearly indicates that it will apply the limitations that were explicit in Judge Friendly’s admonitions.

In Powers v. State, supra, Judge Davidson carefully analyzed all of the relevant Supreme Court cases relied upon by appellant (among others) interpreted in the light of a multitude of jurisdictional analyses. While Powers did not turn upon whether collateral estoppel precluded relitigation of evidentiary facts, its statement of purposes of that doctrine seems quite clearly to indicate that it will apply to evidentiary facts but also, more importantly, that it will apply only to those "necessarily determined.”

"One of the purposes of the doctrine of collateral estoppel is to prevent prosecutors from purposefully using their powers to provide plural opportunities to convict an accused. Ashe v. Swenson, 397 U.S. at 445 n. 10, 90 S. Ct. at 1195 n. 10. Another is to encourage care in the preparation and presentation of the prosecutor’s initial case in order to prevent relitigation which overburdens already crowded dockets and wastes public funds. Mayers & Yarbrough, Bis Vexari: New Trials and Successive Prosecutions, 74 Harv. L. Rev. 1, 32 (1960). The primary purpose of the doctrine of collateral estoppel, however, is to avoid compelling an accused to prove his innocence to two or more juries. More precisely, the doctrine’s purpose is to avoid compelling relitigation of a fact material to the question of innocence when it appears substantially certain that a jury has already decided that fact in the accused’s favor.” Id. at 287 (Emphasis added).

That same limitation appears in every case cited by appellant and notably in those upon which he especially relies, Turner v. Arkansas, 407 U.S. 366 (1972); Simpson v. Florida, 403 U.S. 384 (1971), and Sealfon v. United States, 332 U.S. 575 (1948) (his mainstay), as well as Wingate and Kramer, both supra.

A recent case in the Third Circuit found it unnecessary to address whether collateral estoppel constitutionally barred the evidentiary use of conduct of an accused for which he had been acquitted because that circuit had so applied the doctrine long before Ashe v. Swenson (1970), in United States v. Simon, 225 F.2d 260 (3d Cir. 1955), and even before Sealfon (1948), in United States v. De Angelo, 138 F.2d 466 (3d Cir. 1943). It held that however Ashe v. Swenson was interpreted, it surely did not proscribe extending the doctrine as that circuit had previously extended it. That case, United States v. Keller, [1980], 27 Crim. L. Rep. (BNA) 2294 (3d Cir. May 23, 1980), is significant in that it seems to carry the doctrinal application to evidence, even beyond the Friendly limitations of facts "necessarily determined,” which we indicated appeared implicit in Powers and all of the cases therein discussed.

In Keller the accused and others were charged with conspiracy to distribute PCP. Keller admitted his participation but testified that he had been entrapped because he was cajoled and persuaded to do so by, for and at the behest of a government informer. The government sought to undercut that testimony by cross-examining the defendant about his involvement in drug deliveries at different times, for which transactions he had been acquitted as a result of an entrapment defense. The court allowed no evidence of the accused’s conduct which had been the subject of the prior acquittal. Significantly, the court noted:

"The government argue[d] .. . that this case is distinguishable from the situations previously before this court because Keller did not deny the fact of his participation in the drug distributions but claimed that he was excused from criminal prosecution because he was entrapped. The Government -contends that collateral estoppel is inapplicable because '[i]t is not the result of the prior case that was material, but rather the facts which were undisputed.’ Thus, the Government would have us hold that the prior-conduct is admissible notwithstanding the determination by the earlier fact finder that the defendant’s state of knowledge and level of participation did not satisfy the requirement of the criminal law. * * * We decline to so hold since that would eviscerate the effect of the prior acquittal. We agree with the Fifth Circuit that '[i]t is fundamentally unfair and totally incongruous with our basic concepts of justice to permit the sovereign to offer proof that a defendant committed a specific crime which a jury of that sovereign has concluded, he did not commit.’ Wingate v. Wainwright, 464 F. 2d at 215. The Government position 'places an unjust burden on a defendant to require him to relitigate the very issue a jury decided in his favor.’ U.S. v. Mespoulede, 597 F. 2d at 334.” Keller, supra at 2295-96.

That is but a tiny step from holding that no evidence introduced in a case resulting in an acquittal may ever be used in a subsequent prosecution for any purpose — but even there it does fall short of that extreme. We cannot believe that any jurisdiction would close that last gap, especially in conspiracy cases and their underlying crimes. We are certainly satisfied that Maryland would not. If such broad interpretation were placed upon the doctrine of collateral estoppel, it could. not stand together with the well-established principle that an acquittal of a conspiracy to commit a crime does not bar a subsequent prosecution of the crime. See Annot., 92 L. Ed. 185, 188 (1949). See, also, Sealfon v. United States, supra at 578-79.

A conspiracy is a corrupt combination to accomplish a criminal or unlawful purpose by any means, or to accomplish any purpose by criminal or unlawful means. L. Hochheimer, Criminal Law § 285 (2d Ed. 1904). Although the gist of the crime is the combination, it is necessary in either case to submit evidence of the purpose or means of the commission of or attempt at the underlying crime. If we accept the theory of appellant, any evidence in a conspiracy case, whether relating to the combination or to the ultimate criminal object of an accused, would be forever barred from use at a subsequent prosecution for commission of the underlying crime, which case may have been severed at his own insistence. Whatever may be the law in the third circuit or elsewhere, that is not the law of Maryland.

In Scarlett v. State, 201 Md. 310, cert. denied, 345 U.S. 955 (1953), the defendant who had previously been acquitted of having violated the lottery laws was subsequently convicted on the same evidence of having conspired to violate them. On appeal, Scarlett contended that evidence used in the case for which he had been acquitted should not have been admitted in the subsequent conspiracy case. Relying on the language (not the result) of Sealfon, supra, the court said:

"We cannot agree with appellant that his acquittal of the charges of violating the lottery laws on the three specified days barred the use of evidence obtained on those days to substantiate the charge of conspiracy.” Id. at 319.

Six months later, in that same term of court, Judge Hammond addressed more explicitly the fact that res judicata (the "kissin’ cuzzin” of collateral estoppel) does not prevent evidence of acts constituting a crime for which an accused was convicted from use in a subsequent trial for another and separate crime. Rouse v. State, 202 Md. 481, cert. denied, 346 U.S. 898 (1953), differed somewhat from Scarlett and from the case at bar. Rouse had been convicted at his first trial of having violated the lottery laws. Thereafter he was convicted in a second trial of having conspired to violate those laws. The Court of Appeals affirmed although the State used much of the same evidence to convict in each case. Significantly in Rouse and in the case before us, appellants placed primary reliance upon Sealfon, supra.

The accused in Sealfon was indicted for conspiracy to defraud the United States and separately for the substantive offense. He was acquitted of conspiracy but convicted in a separate trial for the substantive» offense. As explained by Judge Davidson in Powers, supra at 277, the Supreme Court in Sealfon:

.. recognized that the first jury’s verdict of acquittal determined an ultimate fact in favor of the accused while the second jury’s verdict of conviction subsequently determined the same ultimate fact against the accused. It concluded that because the first jury’s verdict of acquittal was a 'determination favorable to [the accused] of the facts essential to the conviction,’ the second jury’s subsequent inconsistent verdict of conviction must fall.”

In summarizing the teaching of that case, however, Judge Davidson pointed out that Sealfon:

"... established not only that inconsistent verdicts, when reached in successive trials, are not permissible, but also that once a person has been acquitted, the federal government cannot prosecute him a second time for a related offense having a common issue of ultimate fact essential to conviction, which the previous acquittal had determined in his favor.” Powers, supra at 277. (Emphasis added).

In analyzing Sealfon both Judge Hammond in Rouse and Judge Davidson in Powers, although writing for different purposes, focused upon and noted that in Sealfon the evidentiary proscription did not extend to all that evidence used in the first case to make up the violation of the crime alleged. It was only the "one fact essential to a finding of guilty” which could not be used in the subsequent prosecution of a different crime. Rouse, supra at 490.

By blending the key clauses of these dissertations, we condense, them to a workable rule that fully supports the anti-harassment function of collateral estoppel. When it appears substantially certain that a jury has already decided a fact essential to conviction in the accused’s favor, (Powers, supra at 287) "that particular fact” (Rouse, supra at 490) which was "necessarily determined” (Kramer, supra at 916) may not be relitigated at a subsequent trial for a separate crime.

In the case at bar, the trial judge was absolutely correct in ruling that Ms. Leak’s hearsay testimony of Wiley’s conversation relating to appellant was not admissible under the co-conspirator’s exception to the hearsay rule. Obviously in light of that determination, she could not qualify as a conspirator. But there was no reason to exclude her testimony of the rape and robbery which would circumstantially show why the victim (Reid) had been killed. A closer question arises, however, in regard to the testimony of Harry Lockwood regarding the murder of the other victim (Addison) in New York. The obvious purpose of this testimony was to show that Addison’s murder was part of the same common scheme or plan which also resulted in Reid’s murder, as indicated by appellant’s comments to Lockwood following the murder of Addison.

By circumstantially connecting Addison’s participation in Ms. Leak’s rape and robbery with Reid’s having planned it (at least in the mind of the employer, Wiley), the testimony that appellant was paid to kill Addison was admissible as a common plan or scheme exception to the bar of evidence relating to other crimes. Ross v. State, 276 Md. 664 (1976). The very fact that its admissibility rests upon the common plan or scheme exception, however, makes it appear very close to being the "ultimate fact” decided in the conspiracy cases. It is such suspect circumstance as this that requires one more step upon appellate review.

All of the cases cited by appellant, especially his primary authority, Ashe v. Swenson, Turner v. Arkansas, and Powers v. State, as well as Simpson v. Florida, stand for another principle implicit in both Rouse and Scarlett. When doubt arises, the determination of whether collateral estoppel applies where the previous acquittal was based upon a general verdict requires the court to examine carefully the record of the prior proceedings, taking into account the evidence, the instructions, and any other relevant matter in the light of the crime acquitted and that convicted. From this review we must conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration in the case last tried.

Appellant argues most persuasively that from opening statement to closing statement and sprinkled throughout the testimony there are statements and allusions of and to a "contract” killing. He notes that there is a very fine semantic line between a "contract” to kill and an unlawful combination to kill. He urges that when he was found not guilty of having combined unlawfully to commit a crime, that determined nonparticipation in anything therein related, such as a murder for hire, and precluded the re-use of any evidence to show motive or premeditation and deliberation which might be inferable from the money-motive in this case.

We do not see the collateral estoppel cases as going this far. The purpose of the evidence in the conspiracy cases was to prove the ultimate fact of a combination. Whether that combination existed is not essential either to the motive of appellant in killing the victims or to whether he deliberated upon it in advance. Although the two factfinders were permitted to view and hear some of the same factual evidence, the "ultimate fact” which they were to decide was entirely different. The first factfinder did not ever decide, or need to decide, whether appellant killed Reid; nor was there a need to decide that issue as to Addison. It follows that the first factfinder had no reason to concern itself with motive or with premeditation, which were the only related concerns of the second factfinder. The second factfinder, on the other hand, was not concerned with whether there was or was not a conspiracy. Although all conspiracies must presuppose elements of premeditation and deliberation, that which is significant here is that the converse is not true.

Our review of both cases, including the instructions of the courts, provides us with assurance that the ultimate facts decided were not the same "[T]he doctrine’s purpose [of] avoiding] compelling relitigation of a fact material to the question of innocence: was not intruded upon because it did not appear "substantially certain that a jury ha[d] already decided that fact in the accused’s favor.” Powers, supra at 287.

— double jeopardy —

At the hearing on the motion to dismiss on double jeopardy grounds, appellant sought to avoid the effects of consenting to a mistrial by distinguishing between his motion for severance and a mistrial motion to which he contended he had never assented.

"MR. CARDIN: The only response that I want to make, Your Honor, is since the docket entries do not indicate any type of mistrial by any party, if they are going — if the Court is now going to state that it meant to declare a mistrial, whatever it may be, I just want the record to show we object to the mistrial, if I hadn’t done it then — if it is going to be construed that we consented to it by moving for severance, then the record will speak for itself, but I just want to make it clear that we never consented verbally, affirmatively, to a mistrial.”

The fragrance is not affected by what we call the flower. The distinction does not turn upon the label applied by the trial judge. The critical question is whether the order contemplates an end of all prosecution of the defendant for the offense charged. Lee v. United States, 432 U.S. 23, 30 (1977). Appellant got what he asked for from start to finish. He not only moved for severance, and suggested the State thereafter elect its course (which was in every effect consent to a mistrial of one or both), but also twice actually sought a mistrial which is, practically speaking, that which he received — a temporary respite rather than a final adjudication. See Lee v. United States, supra. As indicated in Bell v. State, 286 Md. 193, 201-05 (1979), and repeated in Jones v. State, 288 Md. 618, 626 (1980):

"Retrial is not barred as violative of the Double Jeopardy Clause of the Fifth Amendment when a mistrial is declared at the behest or with the consent of the defendant unless such error or misconduct, sufficient to justify the declaration of a mistrial, was committed by either the prosecutor or the court with the intention of (1) forcing the defendant to move for or consent to a mistrial, or (2) prejudicing his prospects for an acquittal if the trial continued to a verdict. It is 'bad faith conduct by judge or prosecutor’ with such intent that prohibits retrials.”

We have carefully reviewed the entire record and find not the slightest indication of "bad faith conduct by judge or prosecutor.” .From the very beginning — even before the trial commenced — appellant elected the course which the court was compelled to pursue. While we did not and do not recommend deferring severance decisions, it was his suggestion that the court do so. He may not now fashion the Elierba shield into a double jeopardy sword since it was he who carefully chose both armor and grounds upon which to do battle. The confusion which resulted, however, should indicate the wisdom of avoiding that procedure after jeopardy has attached — in more ways than one.

— speedy trial —

The same rationale applies to his complaint of denial of a speedy trial. Unquestionably he most carefully guarded himself by asserting his right promptly, repeatedly and diligently through efforts of his attorney. So diligent was counsel that he first filed his motion on April 9, 1979, two weeks before he formally filed his appearance notice on April 26, 1979. Less than a month after his first motion, he filed a second (on May 2, 1979) and by September he was heard on those motions which were denied. In applying the balancing test of Barker v. Wingo, 407 U.S. 514, 530 (1972), those two assertions would tilt distinctly in favor of appellant, see Gillis v. State, 4 Md. App. 265, 267 (1979), and such motion was filed yet again before his second and final trial on March 11, 1980, which clearly preserved the assertion factor in his favor. Testimony indicated that appellant’s attorney did not stop with merely filing motions but sought trial dates from the assignment clerk on several occasions. These efforts were thwarted by the clerk’s insistence that the prosecutor must agree upon a date.

However diligent were these repeated efforts, we note that the Supreme Court does not view the assertion factor strictly in a quantitative sense but relates it to the other facts as well.

"Whether and how a defendant asserts his right is closely related to the other factors we have mentioned. The strength of his efforts will be affected by the length of the delay, to some extent by the reason for the delay, and most particularly by the personal prejudice, which is not always readily identifiable, that he experiences.” Barker v. Wingo, supra at 531.

The State’s reasons for the initial delay seems only to have been attributed to the orderly administration of justice. See Epps v. State, 276 Md. 6, 110 (1975). One month of that seven-month time span was peculiarly the fault of appellant due to the unavailability of his counsel, June 19, 1979 to July 11,1979. Although that which is an orderly administration obviously varies from time to time, surely six months is none too long to prepare and try a complicated dual conspiracy-to-murder and murder case spanning two states. The record further suggests that appellant was also involved with other criminal charges, and his counsel during that time, was equally involved in court, appearances.

But then we add an additional six months, from September 26, 1979 when the murder trial was aborted, to March 11,1980 when it was finally tried. Again appellant’s counsel was unavailable between October 1, 1979 and November 9,1979. Notwithstanding such unavailability, he filed his third motion to dismiss on speedy trial grounds on October 15, 1979.

But for the burden of cases in Baltimore City, it is hard to understand why this case could not have been set down sooner; however, our review of the record indicates that the State made every reasonable attempt to dispose of it while permitting appellant requisite opportunity to pursue the tactical course he had chosen. Assuming as we must, based on his holding, that the trial judge believed this recitation, we cannot say he was clearly erroneous in doing so.

In regard to prejudice, we have presumed as much throughout as we are compelled to do irrebuttably for purposes of determining constitutional dimension, Brady v. State, 288 Md. 61 (1980), and through our analysis under Barker v. Wingo, supra, in the absence of rebuttal by the State. Brady v. State, 46 Md. App. 518 (on remand) (1980). We have weighed the prejudice we have presumed as enhanced by the continued pretrial incarceration of appellant, but note that such is not dispositive of this case, Wilson v. State, 8 Md. App. 299, 307 (1969); nor is any other single factor dispositive, despite the obvious limitations it put upon appellant when all factors are placed upon the scale. Barker v. Wingo, supra at 532.

Appellant testified that two witnesses died prior to his first trial, each of whom would have verified that the prosecution witness Lockwood was actually the contractor buying the victim’s lives rather than Wiley. Appellant did not say, however, that the witness would have testified that appellant was not the contracting instrument of death — or more importantly — that appellant did not in fact kill the victim Reid.

On balance, then, we cannot find that appellant was denied a speedy trial under the facts of this case. The record reflects a concerned and diligent effort by the State to move forward to conclusion without running roughshod over appellant’s rights to defend himself with preliminary procedures (e.g. his various motions to dismiss, etc.).

We are, of course, always concerned when a case is not tried within the period of "constitutional dimension.” The problem is that that period varies depending upon the particular circumstances of each case. As a consequence, we must use the same analysis twice — first to determine if the delay exceeded constitutional dimension so that we can then secondly determine if a speedy trial were denied. Frequently, if the time span chargeable to the State does not exceed that which was procedurally orderly under the circumstances of the case, the period will not exceed that referred to as within "constitutional dimension.” Since no yardstick has been provided by the Legislature or the Court of Appeals, other than the 180-day period for setting a trial date following the first appearance of defense counsel or defendant himself (Md. Rule 746 a; Md. Ann. Code art. 27, § 591), we are compelled to use that time frame as a general guide for determining orderly procedure. The facts of this case do not reveal any unnecessary detriment to appellant nearly so grave as that which was caused by the five-and-one-half-year delay which occurred in Barker v. Wingo, supra.

Judgment affirmed.

Costs to be paid by appellant.

"Q, Mr; Stein, would you please explain to His Honor the delay between the last trial and today?
A. If Your Honor please, after the jury returned its verdicts of not guilty against the Defendant back in September of 1979,1 was aware Mr. Cardin was to begin a-protracted trial involving-the Mudge Paper Company in front of Judge Levin. And the case did indeed go for approximately six weeks.
’ During that time I never had much opportunity - to see Mr; Cardin. However, I distinctly remember a conversation with him about remaining indictments against the Defendant, this indictment. Mr. 'Cardin categorically told me the Defendant was going to proceed to have the indictment dismissed by way of double-jeopardy.
That is what Mr. Cardin told me. When Mr. Cardin told me that, I assumed that when he said the Defendant was going to proceed by way of double jeopardy, that if the Defendant was denied the motion he óf course would appeal to the appropriate appellate courts.
Ás time went on, eventually the Mudge Paper Company case wound down. I again saw Mr. Cardin. He again assured me Mr. Wise was going to proceed by way of double jeopardy.
Mr. Cardin then assured me, if Your Honor please, because Mr. Wise was going to proceed by double jeopardy, he was going to waive extradition here and go to New York for the charges against him up there because there would be no speedy trial issue because he, Mr. Wise, was going to appeal the denial of double jeopardy if it was indeed denied.
That was always my understanding. Eventually, Mr. Cardin and I got together and I suggested to Mr. Cardin that if he was going to proceed this >vay, the most expeditious way to proceed would be, to have the case set in in Part 3 where the motion for double jeopardy would be raised and, denied, the Defendant would then appeal, which of course is his immediate right to do so and the State cannot bar his appealing it.
Mr. Cardin agreed. It was Mr. Cardin who went down to the Criminal Assignment Office and had the case put in in Part 3 for that very purpose.
Now, if Your Honor please, Mr. Cardin all the while was telling me Mr. Wise was going to waive extradition. The case was set in for Part 3 for the purposes of this double jeopardy motion I believe on September 15th. The date is really not important. I am sorry, Your Honor. December 17th.
When Mr. Cardin assured me that Mr. Wise was going to waive extradition — Before the case was heard on December 17th, I received a letter from the New York Police Department or from Mr. Sullivan — I cannot remember which — which informed me they were coming down to take Wiley up for his charges.
And it was their understanding also Mr. Wise was going to waive extradition and they were going to take him at the same time. Would I please make arrangements to have Mr. Wise available.
I called Mr. Cardin and informed him of this and I said to Mr. Cardin that they are coming down after the hearing. Why don’t we set the hearing in a couple of days and if it is denied they can take Wise away. Mr. Cardin agreed.
And I am sure the records of the Criminal Assignment Office will substantiate my claim that after the case was set in by Mr. Cardin in Part 3, it was moved back two or three days in order to accommodate the New York authorities because again, sir, I was always under the impression the Defendant was either going to appeal his denial of double jeopardy and/or he was going to waive his extradition to New York.
Now, December 26th, Your Honor, I received that letter that is now in evidence' indicating to Mr. Sullivan that the Defendant, Mr. Wise, is going to waive extradition, wants all of his charges on January 16th, 1980 disposed of, sir.
I knew that this indictment here, sir, was not in for trial on January 16th, 1980, and of course Mr. Cardin’s letter to Mr. Sullivan corroborated our conversations all along.
However, on December 27th I was flabbergasted to get another letter from Mr. Cardin to Mr. Sullivan in which Mr. Cardin now informs Mr. Sullivan that his December 26th letter was inaccurate. Now, the Defendant Wise is going to wait for the disposal of this indictment.
When I heard that, I immediately moved and I went to the Criminal Assignment Office in December and had this case set in for January 22 in front of Your Honor for purposes of hearing the motion on double jeopardy and of course, as Your Honor knows, you sent us then to Judge Greenfeld where Judge Greenfeld disposed of it.
I then after Judge Greenfeld’s disposition of it, I went to Criminal Assignment on February 1, 1980, and had it set in for trial for March 10, 1980. That is the scenario as I understand it.”

      . This motion, though referred to by counsel as a motion to suppress, was obviously intended by counsel, and accepted by the court, as a motion to strike the testimony.

      . We should also note that in light of Maryland’s constitutional provision making the jury the judge of law as well as of fact, Md. Const., Art. 15, § 5, an acquittal by the jury at the first trial may have rested solely on its unique view of the law concerning that offense, and cannot be taken as having necessarily "determined” any particular question of fact. Benton v. Maryland, 395 U.S. 784, 804 (1969) (Harlan, J., dissenting).

      . So as not unnecessarily to burden this record, we have appended excerpts from the prosecutor’s testimony in that regard.