author: Lowe, J.,

text:
    BEVERLY J. DOUGLAS a/k/a BEVERLY COOPER v. STATE OF MARYLAND
    [No. 1220,
    September Term, 1975.]

      Decided July 23, 1976.

    The cause was argued before Menchine, Lowe and Melvin, JJ.

      Orrin J. Brown, III, Assigned Public Defender, for appellant.

      Bernard A. Baum, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles E. Wehland, State’s Attorney for Howard County, and Dwight Thompson, Assistant State’s Attorney for Howard County, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

Beverly J. Douglas was first tried in the District Court of Maryland for Howard County on a warrant for grand larceny. She was charged with having stolen $136.18 from Safeway Stores, Inc. in Ellicott City where she was employed as a food clerk and cashier. Witnesses were sequestered and admonished “not to discuss the matter with anyone.”

During the testimony of the first witness, the manager of the Safeway Store at which the theft allegedly occurred, it was elicited that he had reported to his supervisor “what had occurred” regarding a missing check in the amount of $136.18, and that the two had then jointly interrogated Douglas. Immediately before a recess of the trial, the court cautioned the manager, Mr. Eades:

“Mr. Eades, you stopped in the middle of testimony. You’re not to discuss your testimony with anyone until counsel and I decide. With anybody, you understand? You’re still on the witness stand and I think no further warning is necessary. You want to bring those other people in from outside? All right, the Court is going to recess until 1:30 and you’ll be required to return at that time. Of course, I just want to warn you that you’ve all been sequestered and you won’t discuss the testimony with anyone, or talk about the case, on your lunch time.”

At the conclusion of his testimony, Mr. Eades was again addressed by the court:

“Thank you, Mr. Eades, you’ll have to absent yourself during the rest of this particular case. You’re not to discuss your testimony with anyone until — or the case — until the entire matter is disposed of.”

Following testimony by other State witnesses, the supervisor of the store, Mr. Larry Dogra, was called. The direct examination of this witness was interrupted by appellant’s counsel who requested a recess to inform the court of a violation of the sequestration order by Eades and Dogra which had just come to his attention. At the conclusion of Dogra’s testimony, David Johnson, Esquire, was called by the court and testified as to what he had observed outside of the courtroom. Speaking of Dogra and Eades, he noted that:

“These two gentlemen were sitting inside the building, on the bench against the far door, all the way back in the corner. This gentleman was sitting against the door, this gentleman was sitting next to him, very closely, and they were discussing the case.”

He then was asked to relate what he had overheard, to which he replied:

“I overheard the — Mr. Eades, is it, in the brown shirt — say to the other gentleman, well, if we can’t prove that the hundred and thirty-some dollars — and I don’t recall what the amount of the check was, was taken — we’re in a lot of trouble, and the other gentleman, as best as I can recall, said, but we can prove it, and then he opened up what appeared to me, and I just briefly scanned out of a notebook some kind of piece of white paper. He started enumerating some figures and subtraction and, of course, I was in the process of walking and I walked on out through the door and that’s — when I came back — I then made a point to come back and the gentlemen were still discussing matters, but I do not specifically know what they were discussing when I came back.”

Eades was then recalled by the State and testified to an innocuous conversation with Dogra, admitting only an insignificant reference to the case:

“... let me see — the only things that were said, he asked me if — did we threaten her that night and I said, not that I can recall, anyway, we’re not supposed to talk about it, and that was it, pertaining to the case.”

At the conclusion of this testimony, the State rested its case, presumably its entire case, whereupon, appellant moved for dismissal arguing that there had been no evidence that the $136.18 had been taken. The court responded somewhat indirectly:

“Quite frankly, Mr. Sadler, [defense counsel] the Court’s of the position that — it’s got in the position of determining credibility and so forth. It couldn’t under the posture of the case do it in fairness. The Court, on it’s own motion, declares a mistrial.”

Thereafter, appellant prayed a jury trial, thereby transferring jurisdiction of her case to the Circuit Court for Howard County. She then moved that court to dismiss the charge against her on the ground of double jeopardy. Upon denial of that motion, she appealed immediately to this Court pursuant to Neal v. State, 272 Md. 323.

We reverse the denial of Douglas’ motion to dismiss. A mistrial should be granted only when there is a “manifest necessity for the act, or the ends of public justice would otherwise be defeated.” The United States v. Perez, 9 Wheat. 579, 580. We are not disposed to consider the trial judge’s concern over the credibility of the State’s witnesses to be a circumstance of “manifest necessity.” Such observations are an important ingredient of judicial decisions.

In Baker, Whitfield & Wilson v. State, 15 Md. App. 73, 89, Chief Judge Orth analyzed the holdings of the Supreme Court in Perez, supra, Gori v. United States, 367 U. S. 364 and the divergent views of the Court expressed in United States v. Jorn, 400 U. S. 470. The conclusion reached by Judge Orth for this Court was:

“We are convinced, and so find, that the rule representing the opinion of a majority of the Supreme Court is that the question whether retrial following a sua sponte judicially declared mistrial without the defendant’s consent is prohibited by the double jeopardy clause of the fifth amendment is to be resolved by a determination whether the mistrial declaration was an abuse of judicial discretion. We are satisfied that ‘abuse of judicial discretion’ is to be assessed by the manifest necessity standard of Perez as explicated by Gori.” 15 Md. App. at 89.

More recently the Court of Appeals, through Judge Eldridge, has provided a virtual alembic of decisions, further distilling the test to be applied in assessing the exercise of judicial discretion in declaring a mistrial. In Cornish v. State, 272 Md. 312, an important guide was emblazoned upon our test for determining if there has been an abuse of discretion:

“The most significant guideline for the exercise of the trial judge’s discretion is that a mistrial is to be declared only where it is ‘manifestly necessary,’ or ‘under urgent circumstances,’ or ‘only in very extraordinary and striking circumstances,’ and declaring a mistrial is not ‘to be lightly undertaken.’ ” Id. at 318.

Cornish dealt with a mistrial declared by a trial judge who stated that she could not erase from her mind a statement made during a criminal trial that it was anticipated that a “guilty plea” was to be entered in the case. Judge Eldridge pointed out that courts have regularly permitted a retrial where the mistrial was caused by discovery of a juror’s possible bias or where something has happened to render doubtful a juror’s impartiality, citing a plethora of examples. The Court recognized that potential prejudice necessitating a mistrial should be weighed upon different scales depending upon who was the trier of fact:

“. .. many different occurrences might lead to a concern that a juror’s impartiality is impaired, but the same events might not be deemed to affect a judge’s impartiality. This is because a judge’s training and experience render him less susceptible to influence by improper remarks or occurrences at a trial. Thus, an event which would necessitate a mistrial where the trial is before a jury, might not require a mistrial in a nonjury trial.” Id. at 322.

But where a judge is in fact affected by the remarks during trial and acknowledges that his objectivity is compromised, the situation is the same as when a juror’s impartiality is rendered doubtful.

“The judge, as trier of the facts in lieu of a jury, cannot properly assess the evidence if his impartiality is affected by an occurrence during the trial. In such a circumstance, there is the same ‘manifest necessity’ to declare a mistrial as where a juror is biased.” Id. at 322.

The similarity in circumstances of Cornish and the case at bar is apparent. Both cases deal with judges sitting as triers of fact who were affected by an occurrence during trial, and who acknowledged that their objectivity was compromised by what they heard and observed.

But that which was heard by the judge in Cornish and was “ ‘implanted in [her] mind’ ” was decisive of the very judgment she was called upon to make. Of equal importance, the prejudicial information was improperly conveyed to her and preempted her role as a fact finder when she admitted her inability to disregard it.

While the occurrence in Cornish was to the accused’s decided detriment, the occurrence in the instant case militated to the accused’s advantage. Here, that which seems to have prejudiced the judge was the conduct and demeanor of the prosecuting witnesses, the observation of which is not only proper but imperative to the fact finding process. Determining the credibility of witnesses is the primary function of a fact finder. If trial judges whose job it is to decide cases, avoid deciding them because of opinions they form of a witness’ credibility, precious few cases would ever be decided.

Nor can we equate a deadlocked jury with an indecisive judge acting as the fact finder. It is somewhat difficult for a trial judge to be other than unanimous.

The credibility of the two prosecuting witnesses was crucial to the accused’s case. If she could convince the fact finder that they had conspiratorially discussed their testimony in violation of the sequestration rule, flaunting the court’s precise instructions to the contrary, the very foundation of the State’s case would be severely damaged. If the testimony of these witnesses was not believed by the fact finder, the accused would have been exonerated.

When the mistrial was declared, however, the witnesses were freed from sanctions against conversing collaboratively and were, moreover, given ample time to do so. Their previous court experience might even incline them to that path. The accused’s recourse at the second trial, of putting the violation of the sequestration rulings at the first trial before the new fact finder, does not cure the error since such evidence is diluted by time and circumstance. Guilty conduct has far more impact when the actors caught in flagrante delicto, than when it is described from memory after the fact.

The mistrial was too “lightly undertaken.” Cornish, supra.

Judgment reversed.

      . Although the reason for the mistrial expressed by the District Court Judge in this ease leaves something to be desired, we will accept the version suggested by the State for purposes of this case.
      “It is ... quite possible that the trial court was effected by the fact that the witnesses apparently discussed the case among themselves even though admonished not to. This was evidenced by the fact that the trial court felt that because of its position in determining the credibility of the testimony of the witnesses, that he couldn’t do it in all fairness. Thus, it would seem that there was a manifest necessity for granting the mistrial and such manifest necessity clearly appears on the record.”


source: Caselaw Access Project

author: Powers, J.,

license: Public Domain

text:
    ELIJAH DAVIS v. STATE OF MARYLAND
    [No. 775,
    September Term, 1975.]

      Decided, July 26, 1976.

      The cause was argued before  Orth, C. J. and Powers and Lowe, JJ.

      James J. Fabian, Assigned Public Defender, for appellant.

      Bernard A. Raum, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and John Prevas, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Powers, J.,

delivered the opinion of the Court.

An understanding of the history of this case is helpful to an understanding of the issues we must now decide. The present appeal is the third arising from charges upon which Elijah Davis, the appellant, was arrested in Baltimore in July of 1970. We are now asked to reverse judgments of the Criminal Court of Baltimore against him on two of several indictments returned in August, 1970.

The pertinent charges are that Davis:

1. Unlawfully did possess certain controlled paraphernalia, to wit: 5000 gelatin capsules, which was suitable for the packaging of individual quantities of controlled dangerous substances, in sufficient quantities and under circumstances which reasonably indicate an intention that such controlled paraphernalia be used for the illegal manufacture and distribution of controlled dangerous substances, and
2. Unlawfully did possess a certain controlled dangerous substance of Schedule III, to wit: Phenobarbital.

On 1 February 1972 the Criminal Court of Baltimore, Grady, J., heard and denied a motion by appellant to dismiss five pending indictments against him for lack of a speedy trial. Davis took an immediate appeal from that order. We entertained the appeal. We affirmed the order denying the motion. We said, in part, in an unreported opinion:

“All of the indictments were filed on 31 August 1970. The appearance of appellant’s retained counsel was entered in each case on 11 September 1970. Additional counsel later entered appearances. On 16 September 1970 appellant was arraigned and pleaded not guilty in each case. Motions for discovery were filed in proper person in February 1971. There is nothing to indicate that either appellant’s own counsel of record or the State’s Attorney’s office was ever made aware of these motions. The dockets record no further proceedings until the cases were called for trial on 1 February 1972.
“At that time appellant asked for a court trial; his codefendant elected a jury trial. The court then severed the two cases. After some discussion about discovery, appellant’s counsel made a motion to dismiss due to lack of a speedy trial. From the transcript of what followed we glean that appellant asserted that at the time of arraignment he demanded a speedy trial. The transcript of the arraignment shows no such request. He also said he ‘put it on the motion when I came back from escape.’ It also appears that some time after his arraignment on the charges in this case, appellant was confined under a sentence in another case or cases. Also, he had other indictments pending against him besides those in the record before us.
“Upon his plea of insanity in another unidentified case, he spent some time at the Clifton T. Perkins Hospital. For some period of time his whereabouts were unknown because he had escaped from confinement. His counsel recalled that there had been certain postponements of scheduled trials because appellant was not ready to go to trial. Specifically in August 1971 a scheduled trial was postponed because appellant requested a jury. Appellant testified that in October 1971 his counsel told him that on February 1st he was going to get the charges dropped.”

After we affirmed the order of the Criminal Court of Baltimore and remanded the cases for further proceedings, Davis petitioned the Court of Appeals for a writ of certiorari. His petition was denied.

The denial of certiorari was noted on the docket of the Criminal Court of Baltimore on 27 March 1973. In April appellant in proper person filed motions for a speedy trial, and to suppress evidence. In June he was notified that his trial would be held on 25 September 1973. The previous time the cases had been called for trial, on 1 February 1972, appellant had accomplished a severance by asking for a court trial when his codefendant elected a jury trial. The record indicates that the cases were called on 25 September 1973 as a court trial. Davis then prayed a jury trial. The case was rescheduled for a jury trial on 25 October 1973. On that date the case was called before Judge Dorf, on the two indictments now before us. Davis then waived his right to a jury, and elected to be tried by the judge. Trial was held on 25,26 and 29 October 1973.

Judge Dorf found Davis guilty on each of the two charges, and imposed consecutive sentences of four years on each. Davis appealed from those judgments. Because of what we held to be an error in admitting evidence seized in an automobile search, we reversed both judgments in an unreported opinion and remanded the case for a new trial.

At the new trial, held before Judge Cardin and a jury beginning on 13 March 1975, Davis was again found guilty on each of the two charges. Before the taking of evidence' was commenced Judge Cardin heard and denied a motion to dismiss the charges for lack of a speedy trial, and a motion to suppress evidence. After sentences were imposed, Davis noted the appeal now under consideration. In his brief and argument here, he presents these questions:

1. Was the Appellant denied a speedy trial and was he therefore entitled to a dismissal of the indictments?
2. Was there sufficient probable cause for the issuance of a search warrant?
3. Is the Plain View doctrine inapplicable when searches are conducted beyond the confines of a valid search warrant?
4. Was the evidence of the gelatin capsules insufficient to sustain a conviction under Article 27, Section 287?

1. Speedy Trial

Appellant argues this contention in two parts, both of which were presented and argued to Judge Cardin at the trial below. First, he contends that his motion to dismiss the indictments should have been granted because he was not brought to trial within 120 days after his request for final disposition of the indictments.

The record shows, and appellant concedes, that he did not comply with the requirements of Code, Art. 27, § 616S. He asserts, nonetheless, that the principles of the Intrastate Detainer statute should be applied to him. He argues that the Court of Appeals, in State v. Barnes, 273 Md. 195, 328 A. 2d 737 (1974), held that § 616S should be liberally construed so as to effectuate its purpose. The liberal construction applied in State v. Barnes was to hold that the mailing of two required notices, one by registered mail and one by ordinary mail, both actually received, was sufficient compliance with the requirement that both notices be sent by registered mail. The Court of Appeals went on to say, at 209:

“We do not suggest, however, that any such liberal construction to effectuate the purposes of the statute should absolve proof by competent evidence of those conditions precedent necessary for bringing the provisions of the statute into play.”

There simply was no proof in this case of the necessary conditions precedent. We cannot construe non-compliance as compliance.

Appellant also argues that the indictments should have been dismissed because he was denied his constitutional right to a speedy trial. The lapse of time to which he points is the period between 27 March 1973, when the docket records the denial of certiorari in his prior appeal, and 25 October 1973, when his trial before Judge Dorf began.

We have examined the record in the light of the principles expressed in Barker v. Wingo, 407 U. S. 514, 92 S. Ct. 2182, 33 L.Ed.2d 101 (1972); Epps v. State, 276 Md. 96, 345 A. 2d 62 (1975); and other cases there discussed. We have made our independent constitutional appraisal of whether appellant was denied his constitutional right to a speedy trial by this time interval of slightly less than seven months.

We find that under the circumstances of this case the lapse of time was not sufficiently inordinate to constitute a “triggering mechanism” to engage in the “sensitive balancing process” of reviewing the conduct of both the prosecution and the appellant which gave rise to the delay. Epps v. State, 276 Md. at 111. We are persuaded that in alternating his elections from time to time between jury trial and court trial, the appellant manipulated his right of election in a fluid strategy designed to frustrate the attempts of the State to bring him to trial. We do not mean to suggest that an accused may not make full use of all procedures available to him, but we do say that he may not complain of the result of his own strategy.

2. The Search Warrant

The paraphernalia and the pills, for possession of which appellant was convicted in this case, were seized by police in the course of the execution of a warrant to search appellant’s automobile and seize a .45 caliber automatic pistol and 12 gauge shotgun, said to be evidence relating to the commission of a crime pertaining to kidnapping.

Appellant attacks the search warrant because its validity is necessary to the validity of the seizure of the paraphernalia and the pills. He says first that the affidavit supporting the application for the warrant was not under oath, and second, that the affidavit did not show probable cause for the issuance of the warrant.

It is perfectly clear that the application for the warrant was supported by a sworn statement of facts. The statement, typewritten on a single sheet of Police Department stationery, was signed at the bottom by Lieut. Edwin Boston, who described himself as “Affiant”. It was also signed by Judge Joseph G. Finnerty. The application, on a printed form, stated that “the facts tending to establish grounds for issuance of Search Warrant are set forth in the Affidavit attached thereto and made a part thereof’, and was signed by Lieut. Edwin Boston as Affiant. A certification, “Sworn to before me and subscribed to in my presence this 12 day of July, 1970” was signed by Joseph G. Finnerty, Judge.

The probable cause required to be shown was, of course, that a pistol and a shotgun, alleged to be instrumentalities of the crime of kidnapping, were to be found in Davis’s automobile. The facts recited by Lieut. Boston were as reported to him by two kidnap victims, Cynthia Green, a former girl friend of Davis, and Michael Lofton, her male companion. We quote a part of the statement:

“ * * * that about 0130 hrs., 12 July 1970, while walking in the alley, rear of the 2800 blk. Parkwood Ave. they were accosted by Cynthia Green’s ex-boy friend, Elijah Davis, M/N/23 yrs., 1603 Edmondson Ave., who placed his hand on the front of his shirt, pulling upward and thereby causing the shape of a pistol to appear. Davis then told Miss Green and Mr. Lofton, ‘Don’t run or I’ll shoot you’. Davis then grabbed Miss Green by her arm and while still holding the front of his shirt, ordered ‘C’mon out of the alley’. At the intersection of the alley and the 2200 blk. Ruskin Ave. Davis struck Miss Green and after she fell to the ground, kicked her in the stomach. Davis then ordered Miss Green and Mr. Lofton to his 1970 Oldsmobile Convertible Sed. Blue in color, with a white top, Md. Lic. CV 4880, which was parked at the intersection of Woodbrook Ave. and Whittier Ave. At the car Davis ordered Miss Green and Mr. Lofton to get into the car. Before they entered, however, an accomplice of Davis’ removed from the floor of the car, from behind the front seat, a 12 gauge shotgun, which was placed in the trunk of the car. In the car, Davis remarked, ‘When I went through the alley looking for Cindy, with that shotgun, everybody ran in their houses.’
“Davis later released Lofton and took Miss Green to 3501 Grantley Rd., where he was later arrested. At the time of his arrest I was advised by Mr. Bernard Morton, 3501 Grantley Rd. that Davis had in the trunk of his auto, a .45 Cal. auto Pistol and a 12 gauge shotgun.
“Information from Miss Green, that while she was dating Davis he always carried a .45 Cal. Auto Pistol under the front of his shirt, and when he did not have it on his person, he would keep same in the trunk of the car. Miss Green stated Davis has pistol whipped her with this gun in the past.”

There was no showing of the basis of Bernard Morton’s knowledge of what he told Lieut. Boston, but we may ignore that part of the statement as unnecessary surplusage. The basis of knowledge of the victims was obviously first hand. The information they gave showed that it was quite probable that the pistol and the shotgun were in the trunk of the car. They had seen the shotgun placed there. Miss Green knew it was Davis’s custom to keep the pistol in the car trunk when it was not on his person.

Coming in a report of a crime by the victims, the information may on that basis be considered “reliable”, as an alternative to a showing of the inherent “credibility” of the source. Aguilar v. Texas, 378 U. S. 108, 84 S. Ct. 1509, 12 L.Ed.2d 723 (1964); King v. State, 16 Md. App. 546, 298 A. 2d 446, affirmed, sub nom. Mobley v. State, 270 Md. 76, 310 A. 2d 803 (1973), cert. denied, 416 U. S. 975, 94 S. Ct. 2003, 40 L.Ed.2d 564 (1974). See also the concurring opinion in Dawson v. State, 14 Md. App. 18, 284 A. 2d 861 (1971).

We hold that the search warrant was validly issued, upon sufficient probable cause.

3. The Seizure

Lieut. Boston was commanded by the warrant to search the described automobile, and to seize the pistol and shotgun if found there. He executed the warrant, in the presence of three other police officers and the appellant. When he opened the trunk of the car he saw the shotgun. He also saw a cardboard box with a green label, which he described as “five by eight inches — six inches”. He identified the box at the suppression hearing before Judge Cardin. Lieut. Boston testified that when he opened the trunk he saw the box and “that box was labeled five thousand gelatin capsules, and as I remember it had a number of a drug company on it.” He said that the label showed that the capsules were “No. 5”, which was the size used on the street for the use and packaging of heroin. He testified that he had had experience and training in narcotics cases, and he knew that at that time on the streets of Baltimore City heroin was being packaged in gelatin capsules and sold. He also had prior information that Davis was in narcotic trafficking, and was a lieutenant in an organization. From what he knew and what he saw, Lieut. Boston said, “it occurred to me the probable use of the gelatin capsules.” He seized the box. When he opened it he found inside about five thousand empty gelatin capsules.

Not yet having found the pistol, Lieut. Boston proceeded to search further for it. In the trunk was a black briefcase, or attache case. It was a little larger than ten by fifteen inches, large enough to hold a pistol. When he opened the attache case to look for the pistol he saw several ledger books which he said were in a pocket in the lid. He also saw in the attache case what he described as two prescription tablets, with the letters “PD”. The officer’s words implied that he saw the tablets in plain view when he opened the attache case to look for the pistol. There was no other evidence which negated such an inference. It was Lieut. Boston’s “educated guess”, from their appearance and the markings on the tablets, and from his experience with pill cases, that they were prescription drugs of the phenobarbital variety. He seized the tablets. A subsequent chemical analysis showed that they were phenobarbital.

Both the box and the tablets were seen by Lieut. Boston, in plain view, during a valid search, commanded by a valid warrant. When he seized the box he had probable cause to believe that it contained controlled paraphernalia. When he seized the tablets he had probable cause to believe that they were prescription drugs of the phenobarbital variety. Each was contraband. His seizure of each was lawful. Each was admissible in evidence. The motion to suppress them was properly denied.

It should be made clear that as to each item, probable cause existed at the time of the seizure. That what the officer had probable cause to believe turned out to be true, when the contents of the box were inspected, and when the tablets were analyzed, is not only unnecessary, but is irrelevant to the legality of the seizure.

We have said that in a previous appeal we reversed the judgments against appellant because of error in admitting the evidence seized in the automobile search. The evidence in that record did not show probable cause for the seizures. The difference lies in the source of the evidence. Lieut. Boston did not testify at the first hearing. The officer who did testify was present, but was watching Davis. He had neither the factual knowledge nor the expertise demonstrated by Lieut. Boston. All he saw was an open box of empty capsules, and two pills. He did not mention a label on the lid of the box, nor did he express a belief that the tablets were prescription drugs. Suffice it to say that the evidence at the retrial concerning the search and seizure was vastly different.

4. Sufficiency of the Evidence

Appellant argues that it is not illegal per se to possess gelatin capsules and that there was no evidence that these capsules were suitable for packaging heroin, or of circumstances reasonably indicating that it was his intention to use them for the manufacture or distribution of controlled dangerous substances.

Lieut. Boston testified at the trial on the merits concerning the seizure of the capsules. He said:

“At that time on the street of Baltimore City gelatin capsules were being used for a packaging device for heroin.”

He was asked to describe the process, and said:

“The heroin, of course, would be cut down many times after it was brought into the country, and at that time it was cut down I believe the normal street value would be that it would be cut to three per cent with quinine mixed with sugar, there were many different devices. However, once cut the heroin is put into capsules and filled up and the cap is replaced, and it was selling at that time for two dollars on the street.”

On cross examination he said that he knew of legal uses for gelatin capsules by pharmacists and hospitals, but if he found them under other circumstances it would be questionable.

There was direct evidence of the suitability of the capsules for use in the manufacture or distribution of heroin. The circumstances permitted the trier of the facts to infer that appellant intended such use. Waller v. State, 13 Md. App. 615, 284 A. 2d 446 (1971). The evidence was sufficient to support the finding of guilt.

Judgments affirmed.

      . Under our later holding in Taylor v. State, 22 Md. App. 370, 323 A. 2d 648 (1974), we would have dismissed the appeal as premature.

      . Affirming the judgment of this Court in Barnes v. State, 20 Md. App. 262, 315 A. 2d 117 (1974).


text:
    MICHAEL JOSEPH O’CONNOR et al. v. PLOTKINS, INC. PLOTKINS, INC. v. RIVIERA BEACH VOLUNTEER FIRE COMPANY, INC.
    [No. 914,
    September Term, 1975.]

      Decided July 26, 1976.

      The cause was argued before Thompson, Powers and Lowe, JJ.

      John L. Moving, Jr., with whom were Goff & Moving on the brief, for appellants Michael Joseph O’Connor et al.

      Joseph G. Finnerty, Jr., with whom were Edward S. Digges, Jr. and Garber A. Davidson, Jr., on the brief, for appellee Plotkins, Inc.

      Joseph G. Finnerty, Jr., with whom were Edward S. Digges, Jr. and Garber A. Davidson, Jr. on the brief, for appellant Plotkins, Inc.

      Louis G. Close, Jr. for appellee Riviera Beach Volunteer Fire Company, Inc.
   Powers, J.,

delivered the opinion of the Court.

These appeals are from judgments entered in the Circuit Court for Howard County after a consolidated jury trial of three suits originally filed in the Circuit Court for Anne Arundel County. All of the claims arose from a tragic accident which happened on 9 April 1970 when a fire engine of the Riviera Beach Volunteer Fire Company, Inc., responding to an emergency call, overturned at the intersection of Fort Smallwood Road and Hog Neck Road in Anne Arundel County.

As a result of the accident Michael Joseph O’Connor, David R. McDevitt, and Joseph E. Sank were injured. John F. Balcer was killed.

O’Connor filed suit against Plotkins, Inc., which had installed new tires on the fire engine three days before the accident, and against Pierre Thibault, Ltd., the manufacturer of the fire engine. In another suit filed against the same defendants the estate and the surviving widow and children of John F. Balcer were plaintiffs, as also were Joseph E. Sank and his wife, and David R. McDevitt. A third suit against the same defendants was filed by the Fire Company. In that case Plotkins, Inc. filed a counterclaim against the Fire Company for contribution or indemnity as to any damages for which Plotkins, Inc. may be found liable to the plaintiffs in the two other suits.

The three cases pending in the Circuit Court for Anne Arundel County were consolidated for trial, and later were removed to Howard County. At the trial in the Circuit Court for Howard County findings by the jury on issues submitted to it resulted in judgments in favor of Plotkins, Inc. on all of the plaintiffs’ claims against it, and a judgment in favor of the Fire Company on the counterclaim of Plotkins, Inc.

After their motion for a new trial was heard and denied, and judgments entered, the individual plaintiffs appealed. They raise a single question. It is:

“Did the trial court err in admitting into evidence over objection the entire report of the Defendant’s expert which report contained facts, opinions and conclusions of others amounting to hearsay and from which [the expert] partially expressed opinions in open court?”

The evidence showed that the fire engine overturned while making a right turn at a right angle intersection of two roads. A fault or damage in the left rear wheel assembly was observed after the accident. All of the plaintiffs contended that the wheel was incorrectly assembled and replaced by the employee of Plotkins, Inc. when he installed the new tires three days before. Plotkins, Inc. contended that the overturn was caused by unrelated factors involved in the design, manufacture, and operation of the fire engine, and that the damage observed in the wheel assembly was not the cause, but the result, of the overturning of the fire engine.

Each side produced expert opinion evidence to support its contention. The witness called by Plotkins, Inc. was Mr. Bradford Schofield, manager of consulting services for Teledyne Materials Research, a consulting engineering firm. No question is involved in this appeal concerning his qualifications as an expert, nor the admissibility of any of his testimony. As the appellants put it in their brief:

“We do not question on this Appeal Mr. Schofield’s testimony as such, but that the testimony was followed into evidence by his report, which we submit was totally irrelevant to the case since Mr. Schofield had testified fully and therefore, that report was of no probative value and seriously prejudiced the Plaintiffs case from the standpoint that it was used to support Mr. Schofield’s testimony and to impress the Jury with its size and thickness.”

If the issue is as narrow as appellants state it, they are contending that what an expert witness may properly say orally before a jury, he may not say in writing. We shall consider that issue as stated.

In a discussion of what constitutes improper suggestion to a witness, either at a trial or in a deposition, the general statement is made in 3 Wigmore, Evidence § 787 (Chadbourn rev. 1970):

“Since the witness’ statement must correspond spontaneously to his actual recollection, it is plain that to permit him, as a practice, to commit to writing beforehand certain statements and then to read them or hand them in as his testimony would be to risk fabrication and coached testimony.”

The author goes on to say, however:

“But the foregoing principle should be left flexible, to fit the facts of testimonial psychology. Sometimes a prepared statement has advantages, without risk of fabrication. In many cases, especially where an expert witness upon a subject of scientific knowledge has made an investigation or analysis and is called to testify, it makes for his own lucidity and accuracy, and for better comprehension and valuation of his testimony, if he first reads his written report stating in precise terms his observations and inferences. This practice should be freely permitted.”

Speaking of an expert’s written report as affected by the rule against hearsay, and by the right to cross examination, the author says in 5 Wigmore, Evidence § 1385 a. (Chadbourn rev. 1974):

“So long as the witness is at the trial subject to cross-examination, there can be no sound objection, on the present principle, to the form of delivering his testimony. In particular, he may read a report prepared beforehand. The report’s statements themselves were indeed not subjected to cross-examination at the time of their composition; but they are now subject to it, and that is enough. The case is the same as though the witness should give an uninterrupted oral narrative for his direct examination, being afterwards subjected to cross-examination. Whether a witness delivers his direct testimony with or without interrogation by the party calling him, is merely a matter of the mode of narration (§787 supra) and does not affect the present principle.”

In the trial of the present case the testimony of Mr. Schofield, after a recital of his professional qualifications, began with a reference to his report, previously identified as Exhibit 25. The report had been in the hands of all parties for more than a year. Throughout his direct testimony, which covered more than 60 pages of the transcript, Mr. Schofield referred to his report and to many of the numerous exhibits attached to it. At the end of the direct examination, appellee offered the report in evidence. Over objection it was received. The objection was two-fold: first, that the witness had already testified to his opinions and there was no need for the report, and second, that the report contained opinions of others which were inadmissible.

If it would have been proper to read the entire report, there was no error in permitting testimony from it by thé question and answer method, and then admitting the entire report in evidence. It was merely a matter of the mode of narration. To the extent that the report may have been cumulative, its admission was discretionary.

But appellants’ argument is not confined to the precise distinction between “oral” and “written”, for which they concededly find no authority, but is directed primarily to the inclusion in the report of information obtained by the expert from other sources.

To the extent that the report detailed and explained the use of information obtained by the expert from other sources, its admission was not only correct, but appellee was required to offer it to support the opinion given. The Court of Appeals said in Casualty Insurance Co. v. Messenger, 181 Md. 295, 29 A. 2d 653 (1943), at 298-99:

“A witness is qualified to testify as an expert when he exhibits such a degree of knowledge as to make it appear that his opinion is of some value, whether such knowledge has been gained from observation or experience, standard books, maps of recognized authority, or any other reliable sources. The knowledge of an expert in any science or art would be extremely limited if it extended no further than inferences from happenings within his own experience. His testimony is admitted because it is based on his special knowledge derived not only from his own experience, but also from the experiments and reasoning of others, communicated by personal association or through books or other sources.”

In State Roads Comm. of Md. v. Novosel, 203 Md. 619, 102 A. 2d 563 (1954), the Court said, at 626-27:

“An expert may be one who is trained in assembling and evaluating information in allied fields in which he lacks the same first-hand knowledge that he possesses in his own specialty.”

Indeed, not only may an expert be permitted, but may be required to demonstrate the basis for his opinion. In a tax assessment case, Dickinson-Tidewater v. Supervisor, 273 Md. 245, 329 A. 2d 18 (1974), the Court of Appeals said, at 253:

“Unquestionably, the facts upon which the opinion of an expert witness is predicated must be stated, Fink v. Steele, 166 Md. 354, 363, 171 A. 49 (1934); this is so because the opinion of an expert must rest upon facts legally sufficient to form a basis for his conclusion, Stickell v. City of Baltimore, 252 Md. 464, 474, 250 A. 2d 541 (1969). If the facts relied upon for the expert opinion are not revealed, it becomes impossible to ascertain whether the conclusion drawn from them possesses sufficient probative force; or is not mere conjecture or speculation, State, Use of Stickley v. Critzer, 230 Md. 286, 290, 186 A. 2d 586 (1962); Fink v. Steele, supra.

See also State, Use of Solomon v. Fishel, 228 Md. 189, 179 A. 2d 349 (1962).

At the conclusion of a rather extensive review of cases involving expert opinion evidence we said, in Madden v. Merc.-Safe Dep. & Tr. Co., 27 Md. App. 17, 339 A. 2d 340 (1975), at 44:

“Where an expert relies on reports of others, he must demonstrate to the court not only that the reports were made in a reliable manner, but that they are reliable sources of information for the purposes to which the expert puts them.”

In the very recent case of Noble v. Director, 32 Md. App. 192, 359 A. 2d 253 (1976), we held that the trial court erred when it declined to admit in evidence or permit identification for the record of the raw factual data upon which a testifying psychologist expressed an opinion that the appellant was a defective delinquent.

Appellants cite and rely upon what the Court of Appeals said in Consolidated Mechanical Contractors v. Ball, 263 Md. 328, 283 A. 2d 154 (1971). In that case an employee of the State Division of Vocational Rehabilitation was permitted to give an opinion that an injured party was permanently and totally disabled from work. The witness was aided in reaching that conclusion by relying upon the opinions expressed in reports received from several medical specialists. Those reports were not in evidence. The Court said, at 335-36:

“It is generally true that the opinion of an expert may not be based in whole or in part on the opinions, inferences and conclusions of other witnesses, [citations omitted] nor on reports and examinations of others if they contain only opinions, inferences or conclusions. * * * Admittedly it is often hard to draw the line between fact and opinion. The usual objection seems to be based on the premise that hearsay will be the foundation of the opinion. While there is considerable authority to the contrary we think there is support for the view that such opinion evidence, in some circumstances, may be admissible, for instance where such reports are relied on by the expert in the practice of his profession.”

Another case of interest is Air Lift, Ltd. v. Board of County Commissioners, 262 Md. 368, 278 A. 2d 244 (1971), in which the Court of Appeals affirmed an order of the circuit court for Worcester County granting an injunction against conducting a rock festival or concert. The Court, in ruling upon the admissibility of certain evidence, said at 401:

“The objection to the testimony of Sgt. Rappaport was based on the alleged hearsay nature of information received by him in his official capacity from other identified law enforcement officers in regard to rock festivals or concerts. This information, however, was obtained in the regular course of Sgt. Rappaport’s official work. He testified that he prepared written reports for his office in the regular course of his duties based upon what he and his office considered to be reliable information from law enforcement officials who were mentioned in the official publication of Law Enforcement Intelligence Units used throughout the United States and by some law enforcement units in Canada. This official information, which is far from mere conjecture or guess, is part of the data on which Sgt. Rappaport, as an expert, reasonably based his opinion. The trustworthiness of the data would go to the weight of the expert testimony and does not, per se, make the expert testimony inadmissible.”

We do not agree with appellants’ characterization of the report as containing opinions and conclusions of others. Their argument specifies four sources they contend are objectionable. They are:

a. Use of drawings and specifications for the fire apparatus, obtained from Pierre Thibault, Ltd., the manufacturer.
b. Use of engineering drawings, brochures, and other descriptive literature made available by Dayton Steel Foundry, manufacturer of the wheels. This included information on standard practices in tire installation, and concurrence by Dayton’s engineers with the expert’s analysis and interpretation of the reasons for variations in stud thread exposure.
c. Use of engineering drawings and descriptive literature for the tire rims obtained from Firestone Steel Products Company.
d. Use of results of research tests to determine coefficients of friction of the tires, obtained from Michelin Tire Company, manufacturer of the tires.

To the very limited extent that the expert’s report referred to opinions or conclusions of others, they were at most confirmatory of the expert’s own opinions. We hold that there was no error in the admission of the report in evidence.

It is unnecessary to consider the contention made by Plotkins, Inc. as appellee that the trial judge erred in denying its motions for directed verdicts.

The other appeal in the record before us was taken by Plotkins, Inc. from the judgment against it on its counterclaim against the Fire Company. As cross-appellant Plotkins, Inc. says here that if the judgments in its favor in the other cases are affirmed, the issue in this appeal would be moot. We agree, and having concluded to affirm the other judgments, we shall dismiss the appeal taken by Plotkins, Inc.

Riviera Beach Volunteer Fire Company responded to the appeal of Plotkins, Inc. with a motion to dismiss, in addition to argument on the merits. The motion points out that the appeal was filed more than 30 days after entry of the judgment appealed from, although within 30 days after entry of final judgments in the other cases, after the motion for new trial was denied. The Fire Company argues that the cases were separate, even though consolidated, and that Maryland Rule 605 a did not defer the time for appeal until all claims in the case had been adjudicated. It relies upon Coppage v. Resolute Insurance Co., 264 Md. 261, 285 A. 2d 626 (1972). The relation of the consolidated cases here, sharing common questions of law and fact, was similar to that involved in Leach v. Citizens Bank of Md. 17 Md. App. 391, 302 A. 2d 634 (1973), and was not analogous to Coppage.

Plotkins, Inc.’s appeal will be dismissed, not because it was filed late, but because the issue is moot.

Judgments in favor of Plotkins, Inc. as a defendant in each case, affirmed.

Appeal by Plotkins, Inc. from judgment against it on counterclaim, dismissed.

Plotkins, Inc. to pay the cost of both briefs in cross appeal and one fourth of cost of the joint record extract.

Appellants to pay all other costs.

      . It appears that all plaintiffs obtained default judgments against Pierre Thibault, Ltd. Those judgments are not involved in this appeal.


author: Moore, J.,

text:
    MARVIN O. SCHAEFFER v. UNITED BANK AND TRUST COMPANY OF MARYLAND
    [No. 921,
    September Term, 1975.]

      Decided July 26, 1976.

      The cause was argued before Moylan, Powers and Moore, JJ.

      William F. Higgins for appellant.

      Patrick F. Mahoney and Charles A. Bongar, Jr., with whom were Giordano, Alexander, Haas, Mahoney & Bush on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

The ultimate question presented here is whether the Circuit Court for Prince George’s County properly granted appellee-payee’s motion for a directed verdict in an action upon an installment note where there was evidence that appellant, an accommodation maker, was unable to read and had been told by the accommodated party, who had been his supervisor and friend, that the document he was signing was a “character reference.”

I

In early 1973 James and Marie Estepp, husband and wife, sought a debt consolidation loan from the United Bank and Trust Company of Maryland. The bank was unwilling to make them an unsecured loan for the amount they desired without the additional signature of a real property owner in Prince George’s County. To that end Mr. Estepp then approached appellant, Marvin O. Schaeffer, whom he supervised at work at the Tantallon Country Club and who owned real property in Clinton. On May 19,1973 the Estepps signed the face of an “Unsecured Installment Note” in the amount of $5,622.69 and appellant signed the reverse side which was blank. The note contained a standard confession of judgment clause.

After the Estepps had made a few of the required monthly installments of $192.93, the payments ceased and the bank communicated with appellant. Appellant advised the bank of Mr. Estepp’s new telephone number and place of employment, in Las Cruces, New Mexico. The bank contacted Estepp there but, his assurances to the contrary notwithstanding, no further payments were ever received.

In due course, appellant was invited to the bank “to make arrangements for him to start paying on the loan.” He endeavored, unsuccessfully, to have the Estepps resume the payments and the bank ultimately obtained judgment by confession against him in the amount of $5,313.83. Appellant’s motion to vacate the confessed judgment was granted (Couch; J.) and appellant filed a general issue plea. He also alleged that the bank obtained the note “by misrepresentation and without consideration to or from the defendant” and “in violation of the Federal Consumer Protection Act and Article 49 of the Annotated Code of Maryland” [now §§ 12-106 and 12-114 (b) of the Commercial Law Article], which provides that lenders must furnish borrowers with certain information concerning the terms of the loan. Appellant also prayed a jury trial.

At the conclusion of its case the bank moved for a directed verdict, which the court denied. At the conclusion of the entire case, the bank renewed its motion and it was granted. The court stated:

“It is unfortunate that he may have a limited education and the Court can sympathize with him, but I do not think that the United Bank did anything wrong in this case in its dealings and I have not seen any evidence here today that it committed any kind of fraud on this particular defendant. I have given you all the latitude that I can to try to show some fraud or misrepresentation. You have not been able to do it to my satisfaction.
“I do not think that I should submit this case to a jury and that is how I feel about it. I do not think they should be allowed to speculate on this because you have not met the burden that the Court of Appeals has made out to show some kind of fraud or misrepresentation.” (Emphasis added.)

It is manifest that the court overlooked evidence of fraud on the part of the maker, James Estepp, and herein resides reversible error.

II

When the trial court was required — by the bank’s motion for a directed verdict — to rule upon the legal sufficiency of the evidence for submission to the jury of appellant’s liability on the note, it had to assume the truth of all credible evidence and of all inferences fairly deducible therefrom and consider them in the light most favorable to appellant as the party against whom the motion was made. It is only when such evidence and inferences lead to conclusions from which reasonable minds could not differ, that the issue is one of law for the court and not one of fact for the jury. Holloway v. Hauver, 22 Md. App. 303, 322 A. 2d 890 (1974); Lauer v. Scott, 12 Md. App. 555, 280 A. 2d 917 (1971).

During the course of the brief trial below, appellant was called by the bank as its own witness. He identified his signature on the reverse side of the note but also stated that he had only a third grade education and had limited reading ability. “I can’t sit down and read a newspaper or nothing.” He was asked by the bank’s counsel why he did not consider himself responsible for the debt and the following colloquy ensued:

“Q. Well, Mr. Schaeffer, will you tell us please why you do not feel apparently that you should pay this debt?
“A. Because Jim Estepp when he told me to sign that paper it wasn’t for paying a debt.
“Q. Well now, you are saying Jim Estepp. You are not saying United Bank and Trust Company; is that correct?
“A. No. Jim told me that when he filled the application out to sign and I signed it. He said it was a character witness.
“Q. Are you stating nobody explained to you that this was a note?
“A. No, sir.”

Under questioning by his own counsel, appellant testified that he had known Estepp for approximately eight years, that Estepp had been his boss at the Tantallon Country Club and had assisted him in the making of funeral arrangements at the time of appellant’s wife’s death. “I thought he was a wonderful guy,” he said.

The officer in charge of installment loans on the date of the transaction with the Estepps explained the circumstances surrounding appellant’s signing of the note:

“A. Well, I told Mr. Schaeffer that he would — that he was responsible for the loan if he signed the note and he didn’t say anything and then he and Mr. Estepp started talking about something and I felt that the man maybe didn’t know, I don’t know, that he was signing as an endorser so I thought that they should talk it over and I left. When I came back I asked them if it was straight, if everything was all right, and he signed the note. That’s all I know.”

In appellant’s own case, his stepmother testified that the vision in his right eye had been impaired by a bottle explosion, that he had attended school only until the third grade, had a learning disability and could not read or write. His brother-in-law testified that he had completed the job application for appellant’s then employment as a groundskeeper and mechanic because “He can’t read and write.”

Under the established rule, previously stated, the evidence in the light most favorable to the appellant would establish (1) that he was almost illiterate, (2) that the nature of the transaction was not explained to him by the bank, (3) that he did not understand that he was assuming any financial responsibility when he signed the note and (4) that Mr. Estepp falsely and fraudulently misrepresented the document. This evidence mounts up to fraud in the factum.

Fraud in the factum, unaccompanied by negligence, is one of the most potent defenses in the realm of commercial law. When it is successfully interposed it bars recovery not only by the promisee on a simple contract (Restatement, ‘Contracts § 475), but also by a holder in due course, § 3-305, Commercial Law Article.

In discussing the elements of fraud in the factum, official comment 7 to § 3-305 of the Commercial Law Article is instructive:

“The test of the defense here stated is that of excusable ignorance of the contents of the writing signed. The party must not only have been in ignorance, but must also have had no reasonable opportunity to obtain knowledge. In determining what is a reasonable opportunity all relevant factors are to be taken into account, including the age and sex of the party, his intelligence, education and business experience; his ability to read or to understand English, the representations made to him and his reason to rely on them or to have confidence in the person making them; the presence or absence of any third person who might read or explain the instrument to him, or any other possibility of obtaining independent information; and the apparent necessity, or lack of it, for acting without delay.”

Here appellant was a man of limited intelligence, little education, and virtually no ability to read English. His supervisor at work, who had assisted him in the funeral of his wife, and in whom he “had complete confidence in what he said” at the time the note was signed, misrepresented the very essence of the transaction.

In a strikingly similar case, a New Jersey court observed:

“The evidence supports the trial court’s finding that De Paul signed the note in issue in reliance upon the false representation made to him by the maker, Ronald Perkowsky, that he was signing only a ‘character reference’ which Perkowsky needed in connection with the purchase of merchandise from Bushberg Brothers of Union City, the payee of the instrument. Because of his subnormal mentality, his only schooling having been in a ‘special class’ of the public school, De Paul was not able to read, except small words, and then he needed reading glasses for this purpose. When he signed this note, he did not read it; he had no reading glasses with him, and the note was not read to him by Perkowsky or the representative of Bushberg Brothers who witnessed his signature. It seems clear, therefore, that the district court was correct in finding that De Paul’s signature was obtained as the result of fraud in the factum, without any negligence on his part.
“The rationale of the defense is the fundamental of contract law that one cannot be bound on an obligation he does not know he is entering into. Restatement, Contracts, § 475.” Amsterdam v. De Paul, 175 A. 2d 219, 220 (App. Div. 1961). See also, Kearney v. Commerce Investment Co., 262 A. 2d 804 (D. C. App. 1970).

Here, of course, the bank was not a holder in due course, but the same considerations lead us to the conclusion that appellant was a victim of fraud in the factum. .

In Amsterdam the plaintiff holder in due course argued that since the fraud was perpetrated by a maker upon a co-maker rather than by the payee, “the defense was not available as against the payee or its transferee, the plaintiff.” 175 A. 2d at 221. In the instant case the bank correctly argues that “there was no testimony or evidence of fraud perpetrated by the appellee on the appellant.” This argument is, however, irrelevant. When the individual charged on a note successfully interposes the defense of fraud in the factum it is immaterial who perpetrated the fraud. As the New Jersey court said in Amsterdam:

“[W]e find no validity in such a distinction. A negotiable instrument which is the product of fraud in the factum, unaccompanied by negligence, as distinguished from an instrument which is the product of fraud in the treaty, is void, and not merely voidable. As stated in 17 C.J.S. Contracts § 140, p. 495:
‘Where some trick is used to substitute another instrument for the one which it is intended to sign, as where a note is substituted for a receipt, and in like cases, the signature has no legal effect, * * *. Hence there is no agreement which can give rights to anyone, except where the signer is estopped by negligence or otherwise to set up the truth as against bona fide third persons * * * f
“In McDonald v. Central R. R. Co., ... 98 A. 391, 392 ([N.J.] 1916) the court said:
‘A misrepresentation of the contents of a document by which one is induced to sign a paper thinking it is other than it really is is the typical case of fraud in the execution; it is a case where the defrauded party may properly say, “I never agreed to that, and hence the document is not my deed.” ’ ” 175 A. 2d at 221.

Because there was evidence in this case from which a jury could have found appellant not liable on the note, it was error for the court to grant a directed verdict for the bank. In so holding, we are mindful that counsel for the appellant did not argue here — nor in the court below — the issue of fraud on the part of Mr. Estepp. This is not a situation governed by Maryland Rule 1085, under which the scope of our review is limited to questions which “have been tried and decided by the lower court.” The motion by the bank for a directed verdict was made on the ground that Mr. Schaeffer had failed to prove any fraud or misrepresentation on the part of the bank. As we have seen, however, the absence of fraudulent conduct on the part of the payee was not dispositive of the case. It was incumbent on the trial court, in its consideration of the motion for a directed verdict, to consider the sufficiency of all the evidence on the issue of Schaeffer’s liability on the note in the light of the pleadings. The defense of fraud in the factum was within the ambit of the general issue plea, since that plea properly encompasses any defense other than those which must be specially pleaded under the provisions of a statute or rule. Md. Rule 342; Herrick v. Swomley, 56 Md. 439, 456 (1881); 2 Poe, Pleading and Practice, § § 606-608 (6th ed. 1970).

Ill

Appellant makes several arguments that require consideration, although only minimal, because a new trial must be ordered.

Much is made of the fact that two witnesses, Mr. Buckingham and his predecessor at the bank, Betty R. Coleman, characterized appellant as being an “endorser” of the note. Since the note provided that

“It is agreed by any person, firm or corporation who writes his, her or its name or signature on the face or back of this instrument, that they and each of them shall be regarded as makers as between them and each of them and any holder hereof.”

and because § 3-402 of the Commercial Law Article, Annot. Code of Md. (1975) provides that “Unless the instrument clearly indicates that a signature is made in some other capacity it is an indorsement,” it is clear that appellant was, if anything, a maker of the note. It seems to us, however, that it is of little moment whether appellant was a maker or an endorser since the contract and warranty liabilities of each class of signatories to a note are not so dissimilar as to predicate appellant’s liability here upon the distinction between a maker and an endorser. Commercial Law Art., § § 3-413, 3-414, 3-417.

Appellant is also off the mark in his stubborn pursuit of the trial court’s refusal to permit him to elicit testimony concerning the fact that he had received no consideration from the bank for the note. As a leading text states:

“At the outset one should understand that an accommodation party’s failure to receive dollars in his pocket from the creditor is not a defense. Time and again sureties respond to a holder’s suit by arguing, T am a surety and I did not receive consideration for my contract.’ This is a losing argument. Section 3-415(2) specifically provides that the surety is liable to a taker (and a fortiori, holders and holders in due course) when the instrument is taken for value before it is due. Regardless whether the surety signs gratuitously or receives compensation, his obligation is supported by the consideration which moves from the creditor to the principal debtor.” (Footnotes omitted.)

White and Summers, Uniform Commercial Code, § 13-14 (1972) at 433 and the cases therein cited.

Finally, even if the bank did not furnish appellant a copy of the statement described in § 12-106 of the Commercial Law Article, such failure did not provide appellant with a defense to the bank’s action. That statement is, by the terms of § 12-106 (b), required to be given to the “borrower”; and the latter term is defined in § 12-101 (b) as a “person who borrows money under this subtitle.” We do not find that appellant’s status as an accommodation maker falls within that definition. Furthermore, § 12-114 provides a criminal penalty for failure to furnish such a statement when it is required, but the statute does not address itself to civil remedies.

Judgment reversed; case remanded for a new trial; costs to be paid by appellee.

      . With life insurance and finance charges the total amount owed the bank was $6,931.08. Much was made at trial and on appeal of the exact appellation to be given to appellant as the additional obligor. We are satisfied from the plain language of the note and the provisions of the Annot. Code of Md., Commercial Law Art. § 3-402 (1975), that appellant was an accommodation maker.

      . The alleged violation of the federal statute was not pursued at trial.

      . If appellant was a maker, he was necessarily an accommodation maker, since he “signed the instrument... for the purpose of lending his name to another party to it.” § 3-415 (1), Commercial Law Art.


author: Thompson, J.,

text:
    FOODMAKER, INC. v. WILLIAM B. DENNY et al.
    [No. 945,
    September Term, 1975.]

      Decided July 26, 1976.

      The cause was argued before  Orth, C. J., and Morton and Thompson, JJ.

      David B. Rudow and Bennett Gilbert Gaines for appellant—cross-appellee.

      David M. Blum and Sheila J. Carpenter, with whom was Richard S. Sokolov on the brief, for appellees — cross appelants.
   Thompson, J.,

delivered the opinion of the Court.

Foodmaker, Inc., operator of Jack-in-the-Box restaurants, formerly Checkerboard Properties, Inc., (Foodmaker), the appellant and cross-appellee, brought a suit at law in the Superior Court of Baltimore City against William B. Denny, Avrum K. Rifman and The Title Guarantee Company for compensatory and punitive damages resulting from an alleged breach of contract for the sale of real property. Denny and Rifman countered by bringing an action in equity against Foodmaker in the Circuit Court of Baltimore City for specific performance of the contract. Pursuant to a stipulation among the parties that the evidence presented at trial would serve as the basis for an entry of a judgment at law and a decree in equity, the case was tried in the Circuit Court of Baltimore City. Prior to trial it was learned that George Goldberg was an additional owner of the subject property and his name was added as a defendant in the case at law and complainant in the equity case. On August 1, 1975, a final judgment in favor of the defendants in the Superior Court and a final decree for specific performance in favor of the complainants in the Circuit Court were entered. Foodmaker appeals contending that a denial of sign permits constituted the failure of a condition precedent entitling it to cancel the contract, and even if Foodmaker is found to have breached the contract, the appropriate remedy is the effectuation of a liquidated damages clause in the contract, not specific performance. The appellees cross-appeal contending that once they had been awarded specific performance of the contract they were entitled to interest as a matter of law.

During the late summer of 1969 Robert A. Parma, agent for Foodmaker, and Denny, who had authority to deal with the subject property as he saw fit, entered into negotiations for the sale of the property located at 414-418 W. Fayette Street in Baltimore City. The property is owned by Denny, Rifman, and Goldberg as partners. It is improved by a three-story building, leased on the first floor to the U.S. Post Office, and to commercial tenants on the second and third floors. These tenants continued to occupy the premises at the same rentals through the date of trial.

During the course of the negotiations leading up to the execution of the contract, Foodmaker’s agents explained to Denny the concept behind a drive-through restaurant. He was also shown a brochure containing drawings of the various aspects of the restaurant. Included in this were drawings of freestanding signs used to advertise the place and its menu. The testimony showed that Denny was completely indifferent about these plans since he was primarily concerned about the purchase price. A purchase price of $198,000.00 was finally agreed upon.

A rider to the contract was executed in September, 1969. The sections relevant to this appeal are as follows:

“2. This Contract is contingent upon Purchaser’s ability to obtain building and sign permits plus site and driveway use for a typical Jack-in-the-Box restaurant within 120 days. Purchaser shall use diligence in pursuing the acquisition of the permits and site use, however, Purchaser may withdraw from this transaction and be released of all liability hereunder should said permits be denied.
“5. Seller hereby covenants and agrees to deliver full possession of the subject property to Purchaser as of close of escrow free and clear of any and all lessees, tenants and/or other occupants.
“7. When all contingencies set forth in this Contract and Rider, except those set forth in Paragraph 5 above, have been met and satisfied, Purchaser agrees to so notify Seller. Upon receipt by Purchaser thereafter of written notice from Seller that all tenants have vacated the subject property and that Seller is in a position to comply with the provisions of Paragraph 5 above, Purchaser shall deposit the balance of closing funds into escrow and instruct escrow agent to close escrow within 10 days after said receipt of said notice from Seller. In the event of Purchaser’s failure to comply with the foregoing within said 10 day period and the failure of said escrow to close within said 10 day period through fault of Purchaser, escrow agent shall and is hereby authorized to disburse Purchaser’s deposit of $20,000.00 to Seller as liquidated damages and thereupon this agreement and any escrow agreement pursuant hereto shall cease and terminate and be of no further force nor effect and all rights and obligations of the parties hereto and of any party claiming under either of them against the other party hereto shall likewise cease and terminate.”

Pursuant to this agreement Foodmaker obtained the necessary permits with the exception of sign permits. Belsinger Sign Works, Inc. of Baltimore was hired as a subcontractor to procure, among other things, the necessary sign permits. Harry Belsinger, President of Belsinger Sign Works, Inc. and member of the three-man Baltimore City Commission on Signs, informed Foodmaker that in his opinion the desired freestanding sign permits were prohibited by City Ordinance No. 663 which gave the Commission on Signs its power, and which at that time stated:

“(e) Unlawful signs. It shall be unlawful, within the area described, (1) for any commercial sign, billboard, or other advertising structure or device to project outward from the primary surface of the building to which it is attached for a distance of more than 12 inches. The commercial sign, billboard, or other advertising structure or device shall be single-faced and shall not project above the top of the vertical wall of the building to which it is attached; (2) to erect any flashing, animated, or rotating signs; (3) for any commercial sign, billboard, or other advertising sign or device to be permitted or erected on the roof of any building; (4) for any commercial sign, billboard, or other advertising structure or device to be painted on any exterior wall of a building except as a substitute for a sign on the primary facade of said building.”

Because of a delay in the procurement of these permits an extension until January 5, 1970 was granted to Foodmaker by Denny. On February 19, 1970 the freestanding sign permit was rejected by the Baltimore City Department of Housing and Community Development. An appeal was taken to the Commission on Signs where it was also rejected.

On March 3, 1970 Foodmaker notified Denny of its intention to cancel the contract because of its failure to obtain these sign permits. From Denny’s refusal to release Foodmaker from the agreement and return a $20,000.00 deposit these actions were initiated.

In Chirichella v. Erwin, 270 Md. 178, 182, 310 A. 2d 555 (1973), the Court of Appeals stated that:

“A condition precedent has been defined as ‘a fact, other than mere lapse of time, which, unless excused, must exist or occur before a duty of immediate performance of a promise arises,’ 17 Am. Jur. 2d, Contracts, § 320. Similar definitions may be found in Bergman v. Parker, 216 A. 2d 581, 583 (D.C. App. 1966); In Re Roberts’ Estate, 190 Kan. 248, 373 P. 2d 165, 171 (1962); Corbin, Conditions in the Law of Contract, 28 Yale L.J. 739, 747 (1919); 1 Restatement of Contracts, § 250 (1932); and 3A Corbin, Contracts, § 628 (1960). The question whether a stipulation in a contract constitutes a condition precedent is one of construction dependent on the intent of the parties to be gathered from the words they have employed and, in case of ambiguity, after resort to the other permissible aids to interpretation, 17A C.J.S. Contracts, § 338; see United States v. Schaeffer, 319 F. 2d 907, 911 (9th Cir. 1963), cert. denied, 376 U. S. 943, 84 S. Ct. 798, 11 L.Ed.2d 767 (1964).

It is clear that Foodmaker entered into the contract for the purpose of operating a profitable restaurant and that a quick-food restaurant cannot be operated properly without sufficient advertising by means of signs. Without first obtaining permits for suitable signs, Foodmaker had no intention or duty to complete the purchase of the site in question. This was expressly stated in the contract.

There was testimony that this particular site was unacceptable without a full complement of freestanding signs because it was at the convergence of two one-way streets. Visibility is poor for traffic proceeding west on Fayette Street and only fair for traffic proceeding north on Paca Street. The concept behind this type of restaurant and the procedure used by a potential customer is directly related to the signs. An approaching motorist would initially observe a freestanding pylon sign either cube or pancake shaped on which the words “Jack-in-the-Box” appear and usually having a rotating clown’s head on top. The purpose of this sign is essentially advertising. The customer would then drive under a sign that says “drive through” which essentially directs the customer where to go. Next he would come upon a freestanding illuminated, menu board which allows him to choose what he wishes to order. He would then drive to a freestanding, illuminated clown’s head containing a microphone and speaker bearing the words “Jack Will Speak To You” and place his order. Finally he would drive to the pick-up window where he would get and pay for his order and then drive off. It was further testified that it is extremely critical for a business which is vehicular oriented to have the complete sign package in order “to identify, to locate, to advertise and to create the entire image” that the restaurant was attempting to project. In this respect the freestanding pylon sign, freestanding menu sign, and freestanding speaker box are considered mandatory and freestanding directional signs are considered desirable.

The real issue in this case surrounds the ambiguous phrase, “sign permits ... for a typical Jack-ip-the-Box restaurant...”. The question is whether by use of the word typical the parties meant freestanding. If they did and Foodmaker diligently pursued this, then a duty of performance never arose, but if they did not then Foodmaker has breached the contract.

Some of the basic rules of contract interpretation were expressed in Canaras v. Lift Truck Services, Inc., 272 Md. 337, 352, 322 A. 2d 866 (1974):

“The court in interpreting a contract places itself in the same situation as the parties who made the contract, so as to view the circumstances as they viewed them and to judge of the meaning of the words and the correct application of the language to the things described. Sorensen v. J. H. Lawrence Co., supra. If the language under consideration is ambiguous or uncertain the court must then determine the intention of the parties. In such a case the court may consider evidence of extrinsic factors, i.e., negotiations of the parties, the circumstances surrounding execution of the contract, the parties’ own construction of the contract and the conduct of the parties. See Mascaro v. Snelling & Snelling, 250 Md. 215, 229, 243 A. 2d 1, 8, cert. denied, 393 U. S. 981 (1968).”

The lower court in its finding of fact stated that during the course of the negotiations Denny was shown the brochure containing pictures and drawings of the freestanding signs. It found, however, that Denny was never specifically told what a typical Jack-in-the-Box restaurant was and that this . typical restaurant necessarily includes freestanding signs; and therefore there was no meeting of the minds that freestanding sign permits were a condition precedent. We find that this conclusion is not supported by the evidence.

The testimony shows that Foodmaker considered freestanding signs to be necessary to the success of the restaurant at the location in question. During the negotiations pictures of the freestanding signs were offered to Denny. Whether he actually looked through the brochure or not is not the controlling factor. The reason that Denny did not acquaint himself with what Foodmaker meant by typical Jack-in-the-Box restaurant signs is that it made no difference to him. The only thing that Denny had to do to understand what was meant by the word typical was to observe what was presented to him. He certainly had the capacity to understand, and thus in the absence of fraud, duress, or mutual mistake his signature binds him to the reasonable interpretation of the word as long as Foodmaker did not know or was not on notice that Denny did not intend what his words and acts indicated. Canaras v. Lift Truck Service, supra at 344; Binder v. Benson, 225 Md. 456, 461, 171 A. 2d 248 (1961). By showing Denny pictures of freestanding signs, it is obvious Foodmaker meant, and reasonably so, that freestanding signs were necessary for a typical restaurant. There is nothing to indicate that Foodmaker realized that Denny understood anything different.

The trial judge relied on the fact that the brochure contained pictures of both six-by-six and eight-by-eight freestanding signs. To him this indicated that Foodmaker did not have an exact sign that was typical and therefore there was no such thing as a typical sign. The fact remains, however, that whether the dimensions of the sign were six-by-six or eight-by-eight the signs described were still freestanding. The freestanding aspect of the signs is typical. There was also evidence presented that at the time of trial there was one Jack-in-the-Box restaurant located at the corner of Broadway and Orleans Streets, that does not have freestanding signs. The testimony shows, however, that the sign permit, granting freestanding signs, was withdrawn by the City after the site had been purchased and construction of the restaurant substantially completed. The fact that only one restaurant, among several, in the Baltimore area does not have a freestanding sign and the reason for that being that the permit was withdrawn, shows that the freestanding sign is typical. Further testimony revealed that Foodmaker will vary their signs to meet local ordinances and restrictions. This explains the differences in the size and shape of the signs, but the fact remains that Foodmaker has never waived the freestanding aspect of the sign prior to purchase of the site for a typical restaurant.

A second area in which we cannot agree with the trial judge is his finding that even if the lack of freestanding sign permits was the failure of a condition precedent, it was so minute that Foodmaker could not justly rely thereon for rejection. If it were important enough to be made an express condition, then it is obvious that the parties did not consider it so minute that its failure would not justify a rejection.

The third question is whether Foodmaker exercised due diligence in its attempt to obtain the sign permit. In assessing this issue the trial judge found that Denny had waived the “time is of the essence” clause of the contract by granting Foodmaker an extension of time to procure the necessary permits. We fully agree with that finding. Allview Acres, Inc. v. Howard Investment Corp., 229 Md. 238, 182 A. 2d 793 (1962). Since the time of the application is not the issue, the question becomes whether the sufficient channels were pursued in good faith.

In Mayor and City Council of Baltimore v. Mano Swartz, Inc., 268 Md. 79, 299 A. 2d 828 (1973), the Court of Appeals ruled that Ordinance 663 was unconstitutional. A legislative act, however, is strongly presumed constitutional. Md. Board of Pharmacy v. Sav-A-Lot, Inc., 270 Md. 103, 106, 311 A. 2d 242 (1973). The fact that Foodmaker did not challenge the constitutionality of the ordinance cannot be considered a lack of diligence.

Similarly, we see little merit to the contention that a simple reading of the ordinance reveals that there is no prohibition against freestanding signs. Foodmaker followed the appropriate channels to determine whether there was such a prohibition. It filed its application with the proper agency which was denied. An appeal was taken to the Commission on Signs and rejected. It is obvious some people did not find the ordinance so simple.

“What will constitute reasonable efforts under a contract expressly or impliedly calling for them is largely a question of fact in each particular case and entails a showing by the party required to make them of ‘activity reasonably calculated to obtain the approval by action or expenditure not disproportionate to the circumstances.’ ” Allview Acres, Inc. v. Howard Investment Corp., supra at 244.

Relying on Pennsylvania State Shopping Plazas, Inc. v. Olive, 202 Va. 862, 120 S.E.2d 372 (1961), Silverman v. Isaac Goldmann Realty Corp., 232 App. Div. 292, 249 NYS 505 (1931), Allview Acres, Inc. v. Howard Investment Corp., supra, and McNally v. Moser, 210 Md. 127, 122 A. 2d 555 (1956), the trial court found that Foodmaker had not exercised due diligence, and therefore could not avoid its responsibilities under the contract. We find that the cases do not support this conclusion.

In Pennsylvania State Shopping Plazas, Inc. v. Olive, supra, the appellee agreed to sell a tract of land to the appellant if the appellant would construct a service station consisting of at least 2,000 square feet of building and pumps, on a portion of the premises and lease it back to the appellee. The Court found that where the appellant made no effort to fulfill its obligation for almost two years and then only attempted to obtain a building permit “to construct a station on 2,000 square feet without considering set-back lines and disclosing the driveways and parking areas around the station were to be used in connection with it” the appellant had not made a bona fide effort to perform.

In Silverman v. Isaac Goldmann Realty Corp., supra, the landlord leased a building to be used as a garage after the landlord in concert with other property owners had several months before made an application to have the area rezoned to a classification which would have prevented this. The landlord claimed he had discharged his duty to procure a permit by filing plans with the building department. The Court found that this was not enough. It went on to add, however, what steps may have constituted due diligence. The landlord could have taken steps to withdraw the application for rezoning; having purchased a large quantity of property in the area, he could have undertaken to secure a sufficient percentage of other owners to obtain a variance; or he could have applied to the board of standards and appeals for a variance.

In Allview, supra, the Court found that a seller had made reasonable efforts to obtain a change of zoning of land contracted to be sold subject to the condition precedent that such reclassification be obtained. As we point out later, in making its determination, the Court looked at the original settlement date to determine the intent of the parties as to the efforts necessary to show a reasonable effort by the sellers to obtain the necessary zoning. It went on to state that there was no argument that the sellers’ efforts lacked reasonableness because of a failure to appeal the Circuit Court judgment and in the absence of such, the failure to appeal does not affect the reasonableness. Contrary to appellees’ contention we do not find that the Court held that due diligence requires an appeal if at some later time an argument of merit is established. That question is left to the facts and circumstances of the particular case.

In McNally v. Moser, supra, a tenant attempted to terminate his lease. When he was informed by the landlords that they intended to keep the lease in effect, the tenant wrote to the building inspector asking whether his use of the premises complied with the zoning laws. Upon learning that it did not, he made no effort either on his own or through the landlords (he failed to even disclose this fact to the landlords) to obtain official permission to continue use of the premises. The Court found that having brought about the challenge to the use in order to escape his duties under the lease he could not idly stand by and gladly claim that his use was illegal. The Court did not as much as hint that a judicial challenge was required.

The facts in the case at bar show that Foodmaker applied to the appropriate administrative agency to obtain the permit. Upon rejection an administrative appeal was turned down. The evidence shows that the policy of the Commission on Signs was to turn down all freestanding sign applications. There is no evidence to show any wavering on this position. To obtain these permits a local sign company and a member of the Commission on Signs was hired. It is not questioned that qualified people were hired. All the evidence shows that Foodmaker obtained every other permit necessary and spent a substantial sum of money in attempting to obtain these permits and in obtaining a preliminary title report and a current survey of the property. Contrary to the cases relied on by the trial judge, the evidence shows that Foodmaker was not trying to find ways to escape from the contract but was diligently trying to obtain the necessary permits.

The appellees argue that because Foodmaker did not seek judicial action to obtain the permits shows a lack of diligence. They say Foodmaker was required to take the necessary judicial or administrative action to obtain the permits since the signs could not be erected without them. McNally v. Moser, supra. If at the time of the signing of the contract both parties felt that both judicial and administrative channels should necessarily be pursued, then Foodmaker would have been required to so perform. The contract states that diligent efforts could be made within 120 days. The 120 day time limit, while found to have been waived, is persuasive to show the intent of the parties at the time of the execution of the contract was that administrative procedures alone constituted due diligence, since both administrative and judicial procedures could not have been concluded within the time limit. Compare St. Luke’s House, Inc. v. DiGiulian, 274 Md. 317, 336 A. 2d 781 (1975), where judicial actions were the appropriate procedure to test a restrictive covenant. For these reasons we find that the trial judge erred in his finding that Foodmaker failed to pursue diligently the obtaining of the permits.

Because we have found that the condition precedent was not met, no duty of performance arose as to Foodmaker and under paragraph 7 of the rider it is entitled to recover its $20,000.00 deposit. As we reverse the decree for the specific performance we do not reach the other questions.

Decree of specific performance reversed.

Judgment in law case entered in favor of Foodmaker, Inc. for $20,000.00.

Appellees to pay costs.

      . The Title Guarantee Company is a party as holder of $20,000 in escrow.

      . We make no comment on the conflict of interest but recite that a member of the Commission was hired to procure the permit only to show the desire of the buyer to obtain the permit.

      . “The facts that the settlement date was not treated as binding by either side, and that no point was made of it here or in the_trial court do not, of course, detract from this view of the intent of the parties at the time the contract was signed, which is the relevant intent on this phase of the case.” Allview Acres v. Howard, supra at 245.