author: Thompson, J.,

text:
    GARDENVILLAGE REALTY CORPORATION et al. v. TONY RUSSO et al.
    [No. 132,
    September Term, 1976.]

      Decided December 2, 1976.

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

      Emanuel H. Horn for appellants.

      John T. Enoch, with whom was Leonard J. Grossman on the brief, for appellees.
   Thompson, J.,

delivered the opinion of the Court.

After a jury trial in the Superior Court of Baltimore City, the appellees Gertrude Russo and Tony Russo, her husband, obtained judgments totaling $98,716.44, and the appellee Gertrude Sajdak, individually and as personal representative of the estate of her husband, George Sajdak, obtained judgments totaling $26,978.30 against the appellants, Gardenvillage Realty Corporation (Garden) and the Arkwell Company, n/k/a The Thunderwood Company (Thunderwood). The judgments were also entered against Alex Luciano and Alex Luciano Company, Inc. by the direction of the trial judge, but no appeal has been filed by the Lucianos. Garden filed a cross-claim against Alex Luciano and Alex Luciano Company, Inc. which was submitted to the judge without intervention of the jury and he gave a judgment in favor of the cross-defendants. Garden also appeals from the denial of its cross-claim. Regional Management Incorporated was originally a defendant but received a directed verdict in its favor. There is no appeal from the judgment entered on that verdict.

On September 25, 1971, Gertrude Sajdak was standing on a concrete slab which constituted the base of the rear porch of the dwelling located at 5911 Laclede Road, Baltimore, and her daughter, Gertrude Russo, was standing beneath the porch attempting to unlock the cellar door, when the porch collapsed causing severe injuries to both of them. Mrs. Russo and her husband at the time of the accident were tenants in the property and Gertrude Sajdak, her mother, was an invitee. The legal title to 5911 Laclede Road, Baltimore was held by Garden. Thunderwood held the “beneficial title.” The record shows that Regional Management Incorporated managed the property in question as well as some 7,000 houses in the City of Baltimore; Regional and the appellants were all part of the Macht group of companies which were engaged in large scale building, renting, and selling of homes. Thunderwood acted as general contractor and applied for the building permits.

Alex Luciano, individually, or as Alex Luciano Co., Inc., under a written order from Thunderwood dated July 22, 1960, undertook to manufacture and install, in accordance with the provisions of the Building Code of Baltimore City, precast concrete slab rear porches at all 600 homes in the Garden project, including 5911 Laclede Road. In 1964, Luciano, after initially measuring the size of the slabs required for these homes, manufactured and installed the slab for 5911 Laclede Road, using his own men and equipment, free of any direction, supervision or control from the appellants as builder and owner.

The precast concrete slabs manufactured by Luciano, measured 3-1/2 feet by 5-1/2 feet by 4 inches for the porch in question. The slab was made by pouring concrete into a mold, then adding steel reinforcing rods. The rods were then covered with more concrete to complete the slab. When the slab was completed, the rods were completely hidden from view. This type of precast slab was described by the appellees’ witness, Samuel Mortimer, Chief of Engineering of the City of Baltimore, as an “elementary type structure” which required no detailed plans or specifications. Donald Radcliff, an architect since 1954, testified that it was not a general practice in the trade to draw plans or submit specifications with regard to precast concrete porches.

The cause of the collapse of this slab, some six years following its construction and installation, was that the metal reinforcing rods within the concrete slab ran the wrong way. Proper construction required that the rods be placed lengthwise in order to properly support the weight of the slab. In the case of the slab furnished for 5911 Laclede Road, the rods were not so placed, and Luciano admitted that the precast concrete slab rear porch at 5911 Laclede Road failed through his negligence.

According to Samuel Mortimer, the failure of Luciano to insert the metal reinforcing rods in the proper direction would constitute a violation of the Building Code. The inspection by the City authorities of 5911 Laclede Road, after its completion, did pot reveal this defect.

Luciano had manufactured precast concrete products in conjunction with his father and brother for a period of some 30 years prior to 1960 and had furnished companion companies of the appellants with various types of precast concrete products, including precast concrete front porches, precast steps and other precast concrete forms which required the use of metal reinforcing rods.

The building permit for 5911 Laclede Road was issued on October 25, 1963. The appellants, Garden and Thunderwood, listed as owner and general contractor, respectively, became permit holders and, as such, were required to conform to and comply with the Baltimore City Code. Mr. William H. Cohen, Vice President of Thunderwood, was responsible for purchasing and, in that capacity, was familiar with the Baltimore City Code and with building permits. Mr. Cohen would consider a supplier incompetent if the supplier did not have knowledge of the Code. Mr. Samuel Mortimer, whose job it is to enforce the Building Code, testified that it would be a prerequisite for any individual or corporation building prefabricated porches to be familiar with the Building Code. He, like Mr. Cohen, expressed an opinion that an individual or corporation building these porches, having no knowledge of the Code, would be incompetent.

Luciano does not now and never did have knowledge of the Baltimore City Code requirements for making concrete slabs. In making the precast concrete slab for 5911 Laclede Road, he did not refer to the Baltimore City Code. Mr. Cohen gave Luciano no details other than the size, price, and directions to comply with the Baltimore City Code. He did not ask if Luciano knew about the Code, nor did he ask if he knew anything about engineering manuals pertaining to the building of porches. The order directed Luciano to adhere to the Code and Cohen did not check to see if, in fact, he did. Mr. Donald Radcliff, the architect who drew up the plans used by the appellants to get the building permit, included in the plans a reference to the concrete back porch, giving the size of 3-1/2 ft. x 5-1/2 ft., but gave no further details concerning the prefab' porch. Had he been asked, Mr. Radcliff would have supplied the details. In order to do so, he would have had to refer to the Baltimore City Code or an engineering manual concerning requirements of reinforcements. Mr. Radcliff would not consider a supplier qualified who had no knowledge of the Code.

Appellants’ Motion for Directed Verdict

The appellants argue that their motion for directed verdict should have been granted because an owner-builder is not liable, as a matter of law, for injuries resulting from a latent defect. In making their argument the appellees concede that the slab in question was negligently manufactured by Luciano, an independent contractor, by improperly inserting the reinforcing bars in the wrong direction. They also concede that the negligence was the cause of the collapse six years after manufacture and installation by Luciano. For the purposes of the argument they concede that there was a violation of the Building Code.

It is well settled in Maryland that a violation of a building code can be evidence of breach of a duty owed. Stein v. Overlook Joint Venture, 246 Md. 75, 227 A. 2d 226 (1967); Sezzin v. Stark, 187 Md. 241, 49 A. 2d 742 (1946). The pertinent parts of the Building Code of Baltimore City, rev. 1962 Ed., are the following:

“1010. General purpose of this Code is to establish standards and to make provisions and requirements regulating the design, construction, reconstruction, installation, alteration, repair, razing, demolition, moving, or removing of buildings-and other structures, or parts thereof, or additions or accessories thereto, or equipment therein, including methods of construction, reconstruction, installation, alteration, repair, razing, demolition, moving or removing, and the sufficiency of materials used in connection therewith, and also regulating the grading of and excavation of land and other changes in land or parts thereof, and also regulating the maintenance, operation, use and occupancy of all buildings and other structures and land, and all inspections thereof, and also regulating the height, area and bulk of all buildings and other structures and the density of population for the purpose of protecting the public health, safety and security of the people of the City of Baltimore.”
“1032. Responsibility of Owner. The owner of any property covered by this Code shall be responsible for the compliance with all of the provisions of this Code in all matters or things pertaining directly or indirectly to such property. Such owner shall be held liable for all violations, of this Code in connection with any land, buildings, structure, or matter or thing owned or controlled by him....”
“1033. Responsibility of others. Any person who violates any of the provisions of this Code shall be held liable for all such violations and shall be subject upon conviction to all penalties prescribed herein for such violations in addition to the owner or owners of any property which may be involved.”
“1400. Required Permits and Issuance Thereof. No matter, thing, operation or work mentioned in, regulated or provided for by any provisions of this Code shall be started or commenced, and no land, building or other structure shall be used for or in connection with any matter or thing mentioned in, regulated or provided for by any provisions of this Code, until and after a proper permit has been issued by and obtained from the Commissioner.
“1408. Failure to comply with permit. Failure to use the materials or the type or kind of equipment or the method of construction or the manner of installation approved by the Commissioner in any permit issued, or the failure to structurally comply with any and all of the requirements of an approved application and all other plans, drawings, specifications or any other approved data submitted with such applications, or the failure to comply with any of the requirements of this Code, shall constitute and be a violation of the. permit issued,. . .”
“1902. Procedure for Violations of Permits. In the event that any land is altered, or building or other structure is built, started to be built, commenced in any way, used for or in connection with any matter or thing mentioned in, regulated or provided for by any provisions of this Code prior to the issuance of a proper permit by the Commissioner, the Commissioner shall order such work to be stopped immediately and no further work or operation shall be done or performed until and after the entire matter has been finally disposed of by the Commissioner. Such land, building, or other structure may not be used unless it meets the requirements of this Code for the use involved and until a proper permit is in force.
“In all cases where a permit has been issued for the doing of any work or the performance of any operation and such work or operation is being done or performed in violation of any of the provisions of this Code or any of the terms and conditions which form a part of any issued permit or of any of the approved plans and specifications for such work or operation, the Commissioner is hereby authorized and empowered to stop such work or operation by notifying in writing the person to whom the permit has been issued, or the person who is doing or performing the work or operation, to immediately cease said work or operation, and upon the receipt of such notice, no further work or operation shall be done or performed until and after the person to whom the permit has been issued, or the person who is doing or performing the work or operation, has been again notified in writing by the Commissioner that he may proceed. Such violation shall subject the violator to the penalties and fines prescribed in this Chapter.
“The Commissioner is further authorized to order any work or operation, which was not done in accordance with the requirements of this Code, to be torn down, dismantled or removed, and no further work or operation shall be permitted until all such nonconforming work or operations has been corrected as ordered by the Commissioner.” .
“1922. General Violations. Any person (including, . but not by way of limitation, any occupant or tenant), firm or corporation violating any of the provisions of this Code, or any lawful order, rule or regulation made or adopted pursuant thereto, shall be guilty of a misdemeanor... .”
“6000. General Design. All buildings and structures and parts thereof shall be designed by a method of rational analysis according to the established principles of mechanics and engineering practices. They shall safely support and resist the dead loads, live loads and impact forces to which they may be subjected and as hereinafter required, and shall, in addition, be adequately braced against all lateral and all other forces to which they may be subject.”
“6430. Metal Reinforcements used in concrete shall be billet steel, rail steel, axle steel, welded wire fabric, cold-drawn wire, and non-magnetic steel alloys or other materials that meet the requirements of this Section.
“Reinforcement made from scrap iron ingots or rerolled steel other than rail or axle steel shall not be used.”
“6500. General Requirements. Reinforced concrete shall be designed by methods admitting of rational analysis according to established principles of mechanics, supplemented by the assumptions herein specified; to support loads and withstand the forces to which it is subject, without exceeding the stresses allowed in this Chapter for the various materials.
“Except as otherwise specifically provided in this Code or in rules duly promulgated by the Commissioner, the provisions of the ‘Building Code Requirements for Reinforced Concrete’ (A.C.I. 318-56 and Appendix), shall be deemed to be generally accepted good practice and to comply with the requirements and provisions of this Code pertaining to reinforced concrete design.”
“6580. General Requirements. Precast reinforced concrete members shall be designed as required for other concrete members in this Chapter and, in addition, as required in this section.
“Precast concrete members shall be designed for construction stresses as well as for dead and live loads.
“Controlled concrete shall be used in all precast reinforced concrete.
. “All sleeves or openings shall be in the concrete at the time of manufacturing and, except for slabs, no drilling or chipping will be permitted on the job.
“All precast concrete shall be subject to the approval of the Commissioner.”

Initially, to determine what if any liability the Code places on the appellants, it must be determined whether the appellees were of the class of persons designed to be protected and that this injury was of the type of harm at which the statute was aimed. We find the language of § 1010 to be dispositive. It recites that the purpose of the act is to protect the public health, safety, and security of the people of Baltimore. This ordinance created a duty on the part of the appellants to erect the property in accordance with the Code. There can be no doubt that the appellees were members of the group the ordinance was designed to protect and that the violation of the ordinance constituted at least evidence of negligence. State, Use of Parr v. Board of County Commissioners of Prince George’s County, 207 Md. 91, 113 A. 2d 397 (1955); Gosnell v. B. & O. Railroad Co., 189 Md. 677, 57 A. 2d 322 (1948).

While the mere violation of a statute or ordinance will not support an action for damages, even though it is evidence of negligence, it is sufficient if the violation is the proximate cause of the injury. Austin v. Buettner, 211 Md. 61, 124 A. 2d 793 (1956).

There was certainly sufficient evidence, which the appellees do not deny, to show that the collapse of the porch was a direct result of the defect in the concrete slab built in violation of the-Code. The question becomes whether social policy and fairness will allow an imposition of liability on the appellants where their negligence was passive when opposed to the negligence of the subcontractor. If the statute imposes a strict liability on the owner and permit holder, then there is no distinction between active and passive negligence. Liability attaches if the violation of the Code was the cause of the injury.

Citing Cutlip v. Lucky Stores, 22 Md. App. 673, 677, 325 A. 2d 432 (1974), cert. denied, 273 Md. 719, the appellants state the old established rule that the employer of an independent contractor is not subject to liability for bodily harm caused to another by reason of a tort committed by the contractor. The rationale behind this rule is that the employer has no control over the acts of the independent contractor and in the case, as we have here, where the independent contractor’s negligence causes injury from a latent defect, the owner and general contractor would have no knowledge of the negligence. Appellants contend that as they had no knowledge of or control over the defective concrete slab they should not be subject to liability. In Cutlip, supra at 677 we stated that the established rule has appended to it some twenty exceptions as set out in the Restatement (Second) of Torts §§ 410-429. Section 424 has particular application to this case:

“§ 424. Precautions Required by Statute or Regulation
“One who by statute or by administrative regulation is under a duty to provide specified safeguards or precautions for the safety of others is subject to liability to the others for whose protection the duty is imposed for harm caused by the failure of a contractor employed by him to provide such safeguards or precautions.”

See also Comment b.:

“b. Statutes and regulations of the kind described are of two types. One type of statute or regulation imposes upon those doing the work an absolute duty to see that the specified safeguards or precautions are provided. The other type imposes merely a duty to use reasonable care to provide them. Whether a statute or regulation is of one type or the other is a matter of construction of the particular provision.
“If the duty imposed is an absolute one, the employer is subject to liability for the failure of the contractor to provide the required safeguard or precaution, even though the contractor has exercised all reasonable care in his effort to do so. On the other hand, if the duty imposed is only one of reasonable care, the employer is subject to liability only if the contractor has failed to exercise such care.. . .”

Attaching the ordinary meaning to the words in § 1032 and § 1408, it is apparent to us that the City Council, in order to achieve their purpose of protecting the residents of Baltimore, has affirmatively placed the responsibility of compliance with the Building Code on the owner and permit holder. This does not mean that an owner-permit holder is liable for every injury which happens on his premises, but it does make him responsible for injuries caused by the failure to comply with the Code. We hasten to add that this liability only attaches to those situations where the owner has title at the time the structure is built. He is in a position to oversee the work and insure compliance with the Building Code. It would not apply to a subsequent owner who would not be in a position to check compliance with the Code. This duty expressly imposed by the council cannot be delegated. Non-delegable duties arise in situations in which the law deems a particular duty “so important and so peremptory that it will be treated as non-delegable. . . . Duties imposed by statute are often found to be of this kind. ...” 2 Harper & James, The Law of Torts § 26.11 at 1406 (1956).

The questions of to what extent a city building ordinance changes and supersedes the common law relation between landlord and tenant, and when a landowner’s liability to his tenants for negligent construction ceases were specifically reserved by the Court of Appeals in Peterson v. Underwood, supra at 21. We also note that prior decisions of the Court of Appeals may indicate a contrary philosophy than we have expressed. For example, see Bona v. Graefe, 264 Md. 69, 285 A. 2d 607 (1972) and Thomas v. Cryer, 251 Md. 725, 248 A. 2d 795(1969).

On the other hand, the Court of Appeals has recently adopted the theory of strict liability in the manufacture and sale of defective products. Phipps v. General Motors Corp., 278 Md. 337, 363 A. 2d 955 (1976). There is an indication that this theory applies to the case at bar. As stated by Professor William Prosser in his Handbook of the Law of Torts (4th ed. 1971), page 680: “The liability of building contractors has tended to follow the same general path of development as that of suppliers of chattels, but to lag behind it by some twenty years.” He stated futher at 682:

“Reference has already been made to the direct ‘warranty’ of the builder of a new house to the initial buyer to whom he sells it. The analogy of the manufacturer of chattels led more or less inevitably to the extension of this strict liability to third persons. In 1965, in Schipper v. Levitt & Sons, Inc.,11 New Jersey again led off by holding that the warranty protected a child of the buyer, injured by a defective water heating apparatus. The decision has since been followed in California,12 Florida,13 and Mississippi,14 with dicta in two or three other jurisdictions approving it.15 Again the prediction is easily made, that this too is rapidly to become the prevailing rule.”
“11. 1965, 44 N.J. 70, 207 A.2d 314.
“12. Kriegler v. Eichler Homes, Inc. 1969, 269 Cal. App. 2d 224, 74 Cal. Rptr. 749. This was followed, as to the land itself, in Avner v. Longridge Estates, 1969, 272 Cal. App.2d 695, 77 Cal. Rptr. 633.
“13. Calvera v. Green Springs, Inc., Fla. App. 1969, 220 So.2d 414.
“14. State Stove Mfg. Co. v. Hodges, Miss. 1966, 189 So.2d 113, cert. denied 386 U.S. 912.
“15. See Bethlahmy v. Bechtel, 1966, 91 Idaho 55, 415 P.2d 698; Humber v. Morton, Tex. 1968, 426 S.W.2d 554.”

Some courts in addition to those cited by Professor Prosser, have adopted the rule as to sellers of new houses. Rogers v. Scyphers, 161 S.E.2d 81 (S. Carolina 1968); Fisher v. Simon, 15 Wis. 2d 207, 112 N.W.2d 705 (1961); McDonough v. Whalen, 365 Mass. 506, 313 N.E.2d 435 (1974). It has also been applied to lessors of a product. Cintrone v. Hertz Truck Leasing, 45 N. J. 434, 212 A. 2d 769 (1965).

While we decline to decide this case on those grounds as the question was not raised or argued by either side, it does appear that the Court of Appeals has adopted the policy of protecting the consumers when they are not in a position to protect themselves. The Court stated in Phipps, supra, that the reasons for adopting strict liability for the manufacturer and seller of defective products were (1) that the cost of injuries should in equity be borne by those who manufacture or sell such products rather than the injured person who was powerless to protect himself; (2) because it shifts the loss to those better able financially to bear the loss; (3) that the consumer relies on the seller in expecting the product to be safe for the uses for which it has been marketed and the expectation is better fulfilled by strict liability than negligence or warranty theories. Although not applicable to the instant case the fourth reason would be a reason to apply the rule in most cases; (4) the showing that the product is unreasonably dangerous is a sufficient showing of fault to impose liability without placing an almost impossible burden on the plaintiff of proving specific acts of negligence. The same reasoning would apply to the tenant in the case at bar. She was powerless to determine whether the premises were safe. For these reasons we find that the Building Code places a non-delegable, affirmative duty on the owner-permit holder at the time of construction, to insure compliance with the Code. See McCoy v. Coral Hills Associates, Inc., 264 A. 2d 896 (D.C. App. 1970) and Leimbach v. Bickford’s, Inc., 214 Md. 434, 442, 135 A. 2d 633 (1957). But see Rigger v. Balt. Co., 269 Md. 306, 311, 305 A. 2d 128 (1973).

Court’s Instructions

Appellants argue that the instructions given by the trial judge were confusing. While we agree that they were not a model of clarity, the jury was instructed several times that if they found a violation of the ordinance that that was evidence of negligence, but that they could not find for the plaintiffs unless, in addition, they found that the violation was the proximate cause of the accident. As we have previously indicated, under our interpretation of the present state of the Maryland law the instruction was more favorable to the appellants than one of strict liability for violations of the Building Code, under § 424 of the Restatement.

Negligence of Independent Contractor Imputed to Owner-Builder

Under this heading the appellants argue that the trial judge’s instructions based on Deford v. State, Use of Keyser, 30 Md. 179 (1869), was in error. The instruction read:

“[ W]here the thing contracted to be done causes the injury and the injury can be said to arise from the authority of the employer because this thing contracted to be done is imperfectly performed, then the employer must be taken to have authorized the act and is responsible for it.”

We agree that this instruction imposed strict liability for the latent defect on the appellants and is not supportable under Deford because in that case the wall constructed under the owner’s contract was fronting on a public street in a large city and in an obviously most defective and dangerous manner, “so much so, that it excited the alarm and apprehension of hundreds of people as they passed, and caused them to avoid the pavement in its immediate front.” Id. at 204. We find, however, that the instruction was no more than the court should have granted under § 424 of the Restatement and §§ 1032 and 1408 of the Building Code.

Appellants’ Claim Against Luciano

We entirely agree with the appellants’ argument that their negligence, if any, was passive and the negligence of the cross-defendant, Luciano, was active, and therefore the court should have granted relief to Garden for indemnification against Luciano. See Pennsylvania Threshermen & Farmers’ Mutual Casualty Insurance Co. v. Travelers Insurance Co., 233 Md. 205,196 A. 2d 76 (1963) and C. & O. C. Co. v. County Commissioners, 57 Md. 201 (1881).

Judgments of appellees against appellants affirmed.

Judgment entered for Garden-village Realty Corporation against Alex Luciano and Alex Luciano Co., Inc. in the amount of appellees’judgments against the appellants.

Appellants to pay the costs.

      . In Peterson v. Underwood, 258 Md. 9, 16, 264 A. 2d 851 (1970), Judge J. Dudley Digges, speaking for the Court, gave a most lucid definition of proximate cause in the following language:
      “It should be clarified at this point that our inquiry is directed specifically to the issue of ‘causation in fact’ which has been regarded as an aspect of ‘proximate cause.’ W. Prosser, Handbook of the Law of Torts, § 41, at 240 (3d ed. 1964), 2 F. Harper and F. James, The Law of Torts, § 20.2, at 1110 (1956). Proximate cause ultimately involves a conclusion that someone will be held legally responsible for the consequences of an act or omission. This determination is subject to considerations of fairness or social policy as well as mere causation. Thus, although an injury might not have occurred ‘but for’ an antecedent act of the defendant, liability may not be imposed if for example the negligence of one person is merely passive and potential, while the negligence of another is the moving and effective cause of the injury. Bloom v. Good Humor Ice Cream Co., 179 Md. 384, 18 A. 2d 592 (1941), or if the injury is so remote in time and space from defendant’s original negligence that another’s negligence intervenes. Dersookian v. Helmick, 256 Md. 627, 261 A. 2d 472 (1970); Liberto v. Holfeldt, 221 Md. 62, 155 A. 2d 698 (1959).
      “Causation in fact is concerned with the more fundamental (and some have thought metaphysical) inquiry of whether defendant’s conduct actually produced an injury. If lay testimony together with reasonable inferences does not directly show this causal relation (such as a witness’s observing a brick hurled through a plate glass window) it may be shown in a number of other ways. The most familiar method today is through the opinion of the expert who states that, based on facts in evidence, X was the efficient cause of the injury. Such opinion testimony is not always required, and the plaintiff produces legally sufficient proof to get to the jury once he shows it is more probable than not that defendant’s act caused his injury. Wilhelm v. State Traffic Comm., 230 Md. 91, 185 A. 2d 715 (1962); Otis Elevator v. LePore, 229 Md. 52, 57, 181 A. 2d 659 (1962). This does not mean plaintiff is required to exclude every other possible cause of the accident. State of Maryland v. Manor Real Estate & Trust Co., 176 F. 2d 414 (4th Cir. 1949); Wilson v. Blaustein, 144 Md. 289, 124 A. 886 (1924). But where plaintiff by his own evidence shows two or more equally likely causes of the injury, for only one of which defendant is responsible, plaintiff can not recover. Langville v. Glen Burnie Lines, 233 Md. 181, 195 A. 2d 717 (1963); Joffre v. Canada Dry, Inc., 222 Md. 1, 158 A. 2d 631 (1960).”

      . We limit our holding to the adoption of § 424 of Restatement (Second) of Torts.


source: Caselaw Access Project

author: Moore, J.,

license: Public Domain

text:
    WILLIAM A. K. RYAN v. JOHN J. BRADY et ux. JOHN J. BRADY et ux. v. E. HOLMES HAWKINS, JR. et al. THE LATHAM COMPANY et al. v. E. HOLMES HAWKINS, JR. et al.
    [No. 136,
    September Term, 1976.]

      Decided December 2, 1976.

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

      Philip E. Nuttle, Jr., with whom were John F. Hall and Nuttle & Hall on the brief, for appellant Ryan.

      Ernest M. Thompson, with whom were Charles E. Wheeler and Miller, Wheeler, Thompson & Thompson on the brief, for appellees and appellants Brady.

      Richard K. White, Jr., with whom were Constable, Alexander & Daneker on the brief, for appellees and cross-appellants E. Holmes Hawkins, Jr., et al.

      George J. Goldsborough, Jr., and Roy B. Cowdrey, Jr., with whom were Goldsborough, Franch & Collett on the brief, for appellants, cross-appellees The Latham Company et al.
   Moore, J.,

delivered the opinion of the Court.

This controvery arose out of the purchase for $240,000 of a small estate on the waters of Peachblossom Creek, in Talbot County. It is undisputed that the selling broker mistakenly described the western boundary of the property to the appellant purchaser, William A. K. Ryan, prior to the execution of the sales contract. A little more than one year after the sale, Mr. Ryan brought suit for rescission of the deed and return of the purchase price, or, in the alternative, money damages. Joined as parties defendant were the vendors, John J. Brady and his wife, Carlyle; the selling broker, Jonathan S. Wilford, Jr., and his employer, The Latham Company; and E. Holmes Hawkins, Jr., and his firm, Walsh and Benson, Inc., with whom the vendors had listed the property on an exclusive basis. The Bradys filed third party claims against the individual and corporate realtors and the latter filed cross-claims against each other.

The gravamen of appellant’s bill of complaint was that by virtue of the misrepresentation, he understood that he would receive .986 of an acre more than was actually conveyed to him, and that had he known the true location of the westerly boundary, he would not have purchased the property. The chancellor, after receiving extensive testimony and numerous exhibits, filed a comprehensive written opinion in which he found that Mr. Ryan had, by his actions, waived his right to rescission. Damages were also denied, the court sustaining the defense of imputed knowledge of the actual boundaries prior to the execution by Ryan of the sales agreement which had been prepared by his own counsel. As an additional ground for the denial of compensation, the court found appellant’s proof of damages wholly inadequate. For the reasons stated below, we affirm.

I

The property involved contained between four and five acres of land, improved by a ten-year-old, three and one-half bath, five-bedroom house, with approximately 350 feet of frontage on Peachblossom Creek. It was originally listed for sale at $285,000.

In late 1972, appellant contracted to sell his own home and acreage located on Leeds Creek in Talbot County for the sum of $425,000, with transfer of possession to occur on or about June 15, 1973. He then began a search for a new residence, preferably in Talbot County, and during the early part of 1973 he was shown a number of properties by appellee, Jonathan S. Wilford, Jr. The latter was a broker with The Latham Company, the agency through which the appellant had sold his property on Leeds Creek.

In early March 1973, the appellee, John J. Brady, gave an exclusive listing to the realty firm of Walsh and Benson, Inc. for the sale of approximately 50 acres owned by himself and his wife located on Plaindealing Creek. At that time, apparently upon impulse, he added to the listing the words, “Also house on Peachblossom Creek, 5 BRMS, 3-1/2 BATHS, etc. $285,000 W&B excl.” Broker Wilfordi subsequently obtained permission from E. Holmes Hawkins, Jr., a broker with Walsh and Benson and a friend of the Bradys, to show Mr. Ryan the Brady property. First, however, Wilford and Hawkins met at the property in order that Wilford could become familiar with the land and improvements. According to Wilford, Hawkins pointed out the boundaries of the property at that time. Hawkins described the western boundary as extending, in a straight line, from an iron pipe located on the northern boundary of a private road, at the north end of the property, southward to a locust post at the southwest terminus near the banks of Peachblossom Creek. When Wilford subsequently showed the property to appellant Ryan, he related to Ryan the boundary information which he had received from Hawkins.

Ryan testified, however, that Wilford told him that the western boundary ran in a straight line from a stake lying somewhere between a stump and an oak tree along the southerly edge of the private road to the southwest terminus post. The stake, knowledge of the existence of which was denied by all other witnesses, including Brady’s neighbor, Charles Berry, was estimated at trial by appellant’s surveyor to be 137 feet west of the true location of the northwest corner of the Brady parcel, as shown by the 1957 recorded plat of survey.

Although Mr. Ryan was dissatisfied with the location of the kitchen in the house and also desired more acreage, he nevertheless decided to purchase the property for $240,000, $45,000 less than the asking price. Upon the acceptance by Brady of his verbal offer, communicated to Brady by Wilford, Ryan instructed his attorney, Philip E. Nuttle, Jr. of the law firm of Nuttle and Hall, to prepare the agreement of sale. As executed, on May 7, 1973, the agreement contained the following description:

“BEING the same lands or premises shown on a plat of Kastenhuber and Anderson, Surveyors, entitled ‘MAP SHOWING A PORTION OF “OAKLANDS” SURVEYED FOR DWIGHT H. LONGLEY, TALBOT COUNTY, MARYLAND, Scale 100 feet to 1 inch, March, 1957’ which plat is recorded among the Plat Records of Talbot County in Liber No. 11, folio 28.
AND being the same lands which were conveyed unto John J. Brady and Carlyle P. Brady, his wife, both of Talbot County, Maryland by deed dated December 20, 1961 and recorded among the Land Records of Talbot County in Liber 375, folio 341, and subject to the conditions and restrictions contained therein.”

Settlement under the contract took place on June 20,1973 at the offices of the attorneys, none of the principals being present. The deed, executed by the Bradys on June 15, 1973, was also prepared by appellant’s attorneys and contained a metes and bounds description, and a specific reference to the plat of survey specified in the agreement of sale. The trial testimony discloses that the actual drafting of the sales agreement and the deed was handled by John F. Hall, Esq., Mr. Nuttle’s partner. Mr. Hall conceded that he must have seen a copy of the survey before the sales agreement was executed.

Shortly after Mr. Ryan took possession of the Brady property, in the latter part of July, 1973, he was mowing the grass along what he believed to be the westerly boundary of his property. His neighbor to the west, Charles H. Berry, approached him and good-naturedly thanked him for mowing the Berry property. A friendly conversation ensued concerning the location of the dividing line between the lots of the two neighbors. One or two days thereafter, Berry delivered to Ryan a copy of the plat of the Berry property and they attempted to locate the four monuments designating the eastern boundary of the Berry property (the same being the western boundary of the Ryan property), but were able to locate only the locust post marking the southeast extremity, and a concrete marker at the northeast corner. Neither Berry nor Ryan could ascertain with precision the location of their common boundary. Mr. Ryan thereafter went on vacation in South Carolina and had no further discussions on the subject with Mr. Berry. Neither, it appears, did Ryan communicate with Mr. Brady nor with his own counsel.

In September 1973, at Berry’s request, appellee Brady assisted his former neighbor Berry in an endeavor to discover the west boundary markers of the Ryan property. They found the first and fourth and although they were unable to locate markers two and three, they drove two stakes into the ground at points which they believed represented the dividing line between the two properties. According to Berry, the two stakes were clearly visible from the Ryan home.

Things remained dormant until late March 1974, when Ryan received the results of a survey of his property following the execution by him, on March 16, 1974, of a contract for the construction of a swimming pool. The survey was ordered by him to assure the pool’s compliance with zoning setback requirements and also to ascertain the correct boundary lines of the property. Ralph A. Porter of Trappe, Maryland, who performed the survey, confirmed that the western boundary was as delineated on Mr. Berry’s plat and, perhaps more significantly, that it precisely coincided with the recorded plat of March 1957, referred to in the agreement of sale and the deed between appellee Brady and appellant Ryan. Indeed, Mr. Porter was able to discover all but one of the four markers on the western boundary of the Ryan property. Mr. Porter testified that the acreage of the parcel was 4.270 acres and that the quantity of land between the western line, as Ryan thought it to be, and the actual location of the westerly line was 0.986 acres. The distance from the side door of the Ryan house to the actual western boundary line was 53.39 feet, whereas the distance to Mr. Ryan’s imaginary western boundary line was 180 feet. The witness was not asked if he had determined the difference between the acreage conveyed and that which would have been conveyed had the western boundary been as described to Ryan by Wilford, according to Wilford’s testimony. The chancellor in the course of his opinion stated, however, that this difference was four tenths of an acre.

According to Ryan, he was outraged when he received the results of the survey on or about March 27, 1974, and immediately contacted Wilford by telephone. Wilford, in turn, contacted Hawkins and both of them expressed surprise about the discrepancy. James C. Latham, president of The Latham Company, appellee, was also summoned by Mr. Ryan, and Ryan informed him that the matter should be adjusted “amicably.” There was no meeting between Ryan and Brady. No solution was reached and suit was filed by Ryan on May 30,1974. He had proceeded, however, with the construction of the swimming pool which was completed in early June, 1974, at a cost of $7,018.

At the trial, appellant’s case was presented through his own testimony, that of Mr. Porter, the surveyor, and Frank S. Dudley, Jr., a qualified real estate appraiser. With respect to the misrepresentation of the western boundary, Mr. Ryan placed the northwest terminus at the point to which we have already referred and which is shown on the plat attached to this opinion. He also stated his understanding, obtained from Wilford, that the boundary line then ran southward in a straight line to a locust post at the southwest terminus. Wilford emphatically denied that he ever represented to Ryan that the northwest corner of the property was located at the point claimed by Ryan. (The court in its findings concluded that Ryan’s recollection of what Wilford told him concerning the location of the westerly line was not accurate and adopted Wilford’s version.)

The real estate appraiser, Mr. Dudley, testified that the value of the .986 acres, based on Ryan’s version of the misrepresentation, was $20,730 upon an average value of $21,034 per acre. In addition, he assessed a ten per cent loss factor because the .986 of an acre was “crucial to the privacy of the property,” which amounted to $21,927. Mr. Dudley’s estimated total damages were rounded to $42,500.

In his memorandum opinion the chancellor found, inter alia: (1) at no time did Mr. or Mrs. Brady make any representation to any person concerning the location or length of the boundary lines of the property or quantity of land contained within them; (2) that prior to the acquisition of the property, Ryan never discussed with anyone other than Wilford the boundary lines of the property; (3) Wilford freely admitted that he unintentionally, and through mistake of fact, misrepresented the location of the northwest marker and this misrepresentation was “significant and material;” (4) as for a conflict in the testimony of Wilford and Hawkins — the latter having denied ever discussing the location of the westerly boundary line with Wilford or anyone else prior to the passage of title to Ryan — the court concluded that Wilford’s testimony concerning the extent of the misrepresentation and his reliance upon Hawkins was more credible; and (5) there was no evidence of fraudulent misconduct on the part of any of the individuals involved. “This is simply a case of negligent misrepresentation originating with Hawkins and passed on to Ryan by Wilford, who, we believe, under all the circumstances, had a right to rely on it as being true and accurate.”

Upon a careful review of the entire record we find that the aforegoing conclusions are amply supported.

II

As previously indicated, we also conclude that the chancellor’s findings that appellant was disentitled to the relief of rescission, or, in the alternative, money damages, was without error.

Rescission of a contract is the abrogation or unmaking of the agreement and the placing of the parties to it in statu quo. It is well established in Maryland that to be entitled to this somewhat extraordinary relief there must be proof of justifiable reliance on a material misrepresentation. Chesapeake Homes, Inc. v. McGrath, 249 Md. 480, 488, 240 A. 2d 245, 249 (1968). Maryland law also recognizes that an innocent misrepresentation may be sufficient to warrant rescission. The Glendale Corporation v. Crawford, 207 Md. 148, 158, 114 A. 2d 33, 38 (1955); Clark v. Kirsner, 196 Md. 52, 56, 74 A. 2d 830, 832 (1950). With respect to contracts for the purchase and sale of realty, it is clear that any misdescription of the estate, interest or extent of the property, in a material and substantial aspect, is sufficient to avoid the contract, but the plaintiff must show that he purchased the property without knowledge of the true state of the land, and that he suffered an injury or loss. Chesapeake Homes, Inc., supra, 249 Md. at 488, 240 A. 2d at 249. The Glendale Corporation, supra, 207 Md. at 158, 114 A. 2d at 38.

It is also fundamental law that the right to rescission is not unqualified. The right of the purchaser to rescind a contract for the sale of realty must be exercised promptly or within a reasonable time after the discovery of the facts upon which the right is invoked. Wolin v. Zenith Homes, Inc., 219 Md. 242, 250, 146 A. 2d 197, 202 (1959). As the Supreme Court stated in Grymes v. Sanders, 93 U. S. 55, 62 (1876), “Delay and vacillation are fatal. . . .” The Court of Appeals quoted this statement in Latrobe v. Dietrich, 114 Md. 8, 21, 78 A. 983, 988 (1910), wherein the observation of Judge Alvey in the earlier case of Foley v. Crow, 37 Md. 51, 62 (1872) was also set forth:

“It is well settled that applications for rescission must be made without delay, and that the party seeking to rescind must come to his election as soon as the cause for rescission is discovered, so that the parties to the contract may be placed as nearly in statu quo as possible. This requirement is founded upon an obvious principle of justice.” 114 Md. at 21, 78 A. at 988.

The right to rescind such an agreement after discovery of the facts warranting the exercise of such right may be waived for failure to act within a reasonable time. As Judge Horney stated for the Court of Appeals in Wolin, the plaintiff is “put to a prompt election to rescind the contract or to ratify it and claim damages.” (Citations omitted.) 219 Md. at 250, 146 A. 2d at 202. Again, once the election is made, it is forever determined. In Telma v. Gingell, 157 Md. 411, 146 A. 221 (1929), the Court declared:

“The right which accrued to the grantee upon the discovery of the real facts was a right of choice or election only. This right when exercised is exhausted, and there is no locus poenitentiae; and, consequently, if the grantee elects to affirm or to repudiate the conveyance, he can never after repudiate what he has once affirmed or affirm what he has previously disaffirmed.” (Citations omitted.) 157 Md. at 415.

Or, as the Court expressed it in Wolin, supra, 219 Md. at 250-51, 146 A. 2d at 202: “Acts by a purchaser which constitute acquiescence, ratification or estoppel will preclude him from rescinding the contract.”

Assuming for the moment that appellant Ryan had been in a position to invoke the right to rescission, it seems abundantly clear that he offended the rules by (a) failing to act promptly and (b) by performing acts constituting ratification rather than repudiation of the agreement. With respect to the time factor, it is manifest that a period of some seven to nine months elapsed between the date of the lawn mowing incident and the time of filing suit. As for Mr. Ryan’s actions, the record discloses that he not only incurred some significant expense in replacement of the porch roof — no emergency being shown — but he also contracted in March 1974 for a $7,000 swimming pool, which, palpably, was not a necessary expenditure. As for the reason for the delay involved, Ryan himself could provide no satisfactory explanation. On cross-examination, he was asked by counsel for Brady what, if anything, he did with respect to ascertaining the accuracy of the plat exhibited to him by Mr. Berry after the lawn mowing incident. He responded:

“I did nothing at all. I of course desisted from mowing his lawn and I apologized for it. And felt that I did not care to get into a boundary dispute with Mr. Berry. I had just moved there, Mr. Berry himself was obviously not sure where his boundary was and when we moved in the Berrys couldn’t have been more gracious to me and my children, and have been very good neighbors ever since that time.
I simply did not want to get into any contention about a boundary line, most particularly since he, himself, was not positive of it,”

The chancellor also inquired of the witness with respect to his inaction:

(The Court) “Well, now, you were put on notice back in the Summer . . . weren’t you? That there was some problem with the boundary by Mr. Berry?
(The Witness) I just moved into the neighborhood, I didn’t care to have any contention with Mr. Berry, as I think I testified sometime during this week. I probably would have known of this boundary error had I contracted to build the pool that Fall, when Mr. Griner had, whose name had been given to me, had been recommended by Jim Latham, for whom he had built a pool.”

Finally, Mr. Ryan was pressed further by counsel for appellee Brady:

“Q. Well, I don’t quite understand — or let me put it this way. I can understand why you would not want to get into any controversy with a new neighbor, that is certainly understandable, sir. But why, when Mr. Berry showed you this marker in your front yard and you must have assumed that it had some significance and gave you a plat, why didn’t you call the Bradys, because they were no longer your neighbors?
A. I called no one. I wanted no controversy, as I recalled. I was leaving for South Carolina for a vacation in August.” (Emphasis added.)

There were, of course, other alternatives available to Mr. Ryan than controversy with his neighbor. The record clearly indicates that he was experienced in land transactions and that in this particular case he and his counsel were aware of the existence of the 1957 recorded plat. He did not communicate with counsel nor did he take prompt action to obtain professional assistance in the verification of his boundary line. Obviously, he had knowledge of circumstances which ought to have put a person of prudence on inquiry. He could not reasonably fail to make inquiry when the propriety of the investigation was suggested by circumstances of which he was aware. See Blondell v. Turover, 195 Md. 251, 257, 72 A. 2d 697, 699 (1950). Furthermore, his actions in performing repairs and constructing a swimming pool represented an election on his part to stand by the terms of the agreement rather than to repudiate it. See Wolin v. Zenith Homes, Inc., supra; Latrobe v. Dietrich, supra; Ortel v. Upper Ashburton Realty Co., 171 Md. 678, 190 A. 239 (1937).

There is yet another fundamental weakness in appellant’s case which not only justifies the chancellor’s finding that he was not entitled to damages, but also impinges upon his right to seek a rescission. We refer to the active role assumed in this case by appellant’s counsel, at appellant’s request, at a point in time antecedent to the execution of the contract. Asked whether Mr. Latham or Mr. Wilford offered to prepare a written agreement of sale after he had come to the decision to purchase the Brady property, Mr. Ryan responded:

“I think Mr. Latham — not Mr. Latham — Mr. Wilford said something about preparing the contract of sale and I said I would have my attorney prepare the contract of sale.”

Thereafter he explained under further questioning that he considered this “prudent” and was, at all events, his “usual practice.”

As the evidence discloses, Attorney Hall undertook the drafting of the contract of sale, title examination and preparation of the deed. Preliminary to this work, three days prior to the execution of the sales agreement, he obtained from the clerk of the court a copy of Mr. Brady’s deed. This deed referred to the recorded plat of the property and contained an incorrect reference to the land records in which the plat would be found. The agreement of sale, as drafted by Hall, however, made an appropriate correction of the folio number. Based upon this fact, although Hall testified that he could not recall whether he had actually viewed the recorded plat prior to the execution of the contract, he thereafter conceded, “I think it’s as obvious as could be what the answer to all that is ... I think the answer is I saw it.”

The recorded plat would have disclosed that the westerly boundary of the Brady property contained not one course but three courses, forming a “dog leg” at the southwest extremity, and that the line was not straight. The essential fault of Wilford’s misrepresentation was that the western line was straight. The record plat clearly showed that this was erroneous. Mr. Ryan’s counsel had either actual knowledge or was affected with notice of the true configuration of the “dog leg” appearance of the property line and, as shall be seen, this knowledge was imputed to Mr. Ryan so that the appellant knew, at the time he signed the agreement and accepted the deed to the property, that the westerly property line was not as had been represented by Wilford.

As for the knowledge of counsel, it is established law in Maryland thát a title examiner is charged with notice of whatever appears in the land records in the chain of title to the property involved. Williams v. Skyline Development Corp., 165 Md. 130, 165, 288 A. 2d 333, 373 (1972); Williams v. Banks, 11 Md. 198, 250 (1857). There is thus no room for a defense that Mr. Hall did not actually perceive the configuration of the western property line. If he did not, he was nonetheless affected with legal notice of it. Furthermore, notice to an attorney is notice to his client. Williams v. Skyline Development Corp., supra, 265 Md. at 165, 288 A. 2d at 373; Boring v. Jungers, 222 Md. 458, 463, 160 A. 2d 780, 783 (1960). In Boring, the Court of Appeals affirmed a decree dismissing a bill in equity by purchasers to rescind a deed on the ground that the road frontage of a commercial lot was some 190 feet short of the 1200 feet which they believed they had purchased. The evidence showed that their attorney, Adolph Furman, was in possession of a plat which showed the actual frontage. Hammond, J., later Chief Judge, wrote for the Court:

“We think the Borings cannot justly complain because the road frontage, including that of the Peltzer wedge, was some 190 feet short of 1200 feet. Passing the point that the contract said the frontage was ‘approx. 1200 feet’ — compare Cohen v. Numsen, 104 Md. 676, 681, and Brodsky v. Hull, 196 Md. 509 — we find it clear that the Borings knew before settlement that there were only a little over 1000 feet of road frontage. Furman was their agent; the evidence makes it plain that he knew the facts, and his knowledge acquired in the course of the transaction was the knowledge of his principals. ” (Emphasis added.) (Citations omitted) 222 Md. at 463, 160 A. 2d at 783.

And in an earlier case, Gunby v. Sluter, 44 Md. 237 (1876), the defendant successfully resisted a claim for rescission based on her alleged misrepresentations concerning the nature of her title by asserting that prior to execution of the contract the deed disclosing her true interest was supplied to the plaintiff, and was examined by plaintiff’s counsel. The Court of Appeals stated:

“A sale, though founded on the misrepresentations of the seller, cannot be for that cause wholly rescinded, if prior to the completion of the sale, the purchaser had become acquainted with the whole facts, and yet confirmed the bargain.” 44 Md. at 248-49, quoting Hilliard on Vendors, § 330.

The logical extension of these principles and their legal effect is that although a purchaser of land has a right to rely upon a representation made to him by the seller or his agents, as to the boundaries, without being required to conduct an independent investigation of the land records, once the purchaser assumes the burden of an examination he cannot say that he was deceived to his injury where such examination discloses the correct information. See Piper v. Jenkins, 207 Md. 308, 113 A. 2d 919 (1955). As the Court of Appeals declared in Piper, citing Shappirio v. Goldberg, 192 U. S. 232 (1904):

“. . . where the means of knowledge are at hand, and the purchaser undertakes to make an examination of the land records, he cannot say that he was deceived and injured by misrepresentations of the vendor.” 207 Md. at 314, 113 A. 2d at 922.

In Shappirio, upon which the chancellor relied in reaching his decision, a real estate broker was entrusted by the purchaser, Shappirio, with the examination of the deed and title. In the then Supreme Court of the District of Columbia, the purchaser’s bill of complaint seeking rescission and alternative relief was dismissed, and the decree was affirmed by the Court of Appeals of the District of Columbia. In affirming that judgment, the Supreme Court, by Mr. Justice Day, held that the broker was the agent of Shappirio, “and his knowledge and means of information must be imputed to the purchaser.” 192 U. S. at 241. The Court went on to say:

“When the means of knowledge are open and at hand or furnished to the purchaser or his agent and no effort is made to prevent the party from using them, and especially where the purchaser undertakes examination for himself, he will not be heard to say that he has been deceived to his injury by the misrepresentations of the vendor.” (Emphasis added.) 192 U. S. at 241-42.

Appellant seeks to avoid the result mandated by Shappirio by reliance upon Chesapeake Homes v. McGrath, 249 Md. 480, 240 A. 2d 245 (1968). In McGrath, the Court of Appeals granted the purchaser’s bill for rescission in a situation where the vendor-defendant fraudulently represented the size of his lot. The opinion of Finan, J. held the case of Piper v. Jenkins, supra, to be of controlling effect. Although the purchaser was an attorney who had seen a plat of the subdivision on the wall of defendant’s office, and who knew of the existence of the plat on file among the county’s land records, the court held that the seller was estopped from raising this defense since it had convinced the purchaser not to examine the plat because it was “small and somewhat confusing.” 249 Md. at 489, 240 A. 2d 250. In the case sub judice, no effort was made on the part of the appellee to prevent the appellant from examining any of the land records or to distort the information disclosed therein.

As Judge Clark stated in his opinion below:

“As the Court cannot conceive of a conscientious, title attorney (which we believe Mr. Hall to be) engaged in a transaction of this size and character, failing to read the recorded plat of subject property preparatory to drawing the contract of sale and deed and guaranteeing the title, we believe it to be reasonable to infer that he did so read it and accordingly draw this inference. The primary reason a title examiner must carefully examine the most recent plat of the property, the title to which he is searching, is to make sure that all deeds thereto subsequent to the date the plat was recorded embody the same description of the property as that shown on the plat. If they don’t and nothing has been sold off or added to the property since it was surveyed and platted, then it would be necessary to obtain a confirmatory deed from one or more of the sellers’ predecessors in title to reconcile the recorded deed descriptions of the property with its configuration as shown upon the recorded plat thereof and thereby remove that cloud upon the title. Furthermore, as a general rule, the most recently recorded plat is the best source for the description of the property.”

The lower court was correct in finding that the knowledge of appellant’s counsel as to the publicly recorded plat was imputed to Ryan himself. In legal effect, therefore, he completed the purchase of the Brady property with knowledge that the configuration of the westerly property line was different from what he had been told by Wilford. He cannot be heard to complain that he was deceived to his injury by the mistaken representation of Wilford. The inevitable legal consequence is that the appellant purchased the Brady property at the price of $240,000 for the acreage actually contained within its boundaries, and is without a claim for damages against the Bradys and the several other appellees.

Even if a claim for damages could properly be entertained by the court, we agree with Judge Clark that no sufficient evidence was offered as to the quantum of damages sustained by appellant by virtue of the misrepresentation.

In this connection we observe, first, that the court rejected out of hand Mr. Ryan’s claim that he had been deprived, by the misrepresentation, of some .986 acres; and we have previously noted that the court’s conclusion that .4 of an acre was the actual extent of Ryan’s loss, was the court’s approximation only, and was not based upon expert testimony at the trial. Appellant’s contention on this appeal must ultimately be reduced to this — that the mathematical computation employed by Ryan’s appraiser, Dudley, to determine damages for the loss of .986 of an acre should have been employed by the court to determine damages for the loss of an uncertain quantity of land, perhaps not exceeding four tenths of an acre. In our judgment appellant would have the court indulge in the sheerest speculation by applying a questionable formula of valuation to an area of land of undetermined quantity. This we must reject.

Decree and supplemental decree affirmed; costs to be paid by appellant, William A. K. Ryan.

      . The precise nature of the error and the amount of acreage involved in the misrepresentation were, however, disputed points.

      . A plat of the property (and adjacent property) adapted from appellant’s exhibits is appended to this opinion. It shows (a) the actual western boundary per 1957 recorded plat; (b) the western boundary as misrepresented by the selling broker, according to his testimony; and (c) the western boundary as claimed by Mr. Ryan, on the basis of his version of what the broker had disclosed. The chancellor found appellant’s version unsupported and his finding is not challenged on this appeal.

      . According to the witness, the concrete marker at the northwest corner was three-quarters of an inch above the ground and plainly visible; marker number two, separating the first two courses, was found buried under five or six inches of dirt; and marker number four, at the southwest terminus, *vas found along the shore in approximately its correct position. The third marker was not found.

      . This calculation was not explained by the court. It was not derived from any other testimony and it is contended by appellees, Hawkins and Walsh and Benson, Inc., that there was no support in the record for this figure. We deem it an approximation.

      . Actually, as the 1957 recorded plat disclosed, the southwestern section of the boundary line was not in a straight line but had a “dog leg” configuration.


author: Mason, J.,

text:
    STEVEN ALLEN PYLE v. STATE OF MARYLAND
    [No. 139,
    September Term, 1976.]

      Decided December 3, 1976.

    The cause was argued before Morton, Powers and Mason, JJ.

      Thomas J. Bollinger, Assigned Public Defender, for appellant.

      Henry E. Dugan, Jr., 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.
   Mason, J.,

delivered the opinion of the Court.

The appellant, Steven Allen Pyle, was convicted by a jury in the Circuit Court for Howard County of possession of a controlled dangerous substance and of carrying a concealed weapon. He was sentenced to a term of one year for the drug conviction and a consecutive term of three years for the concealed weapon conviction.

On appeal the appellant contends:

I. The trial judge erred in denying appellant’s motion to dismiss for lack of a speedy trial.

II. The trial court erred in forcing the appellant to proceed on the motion to suppress after the appellant had shown his standing to object to the admission of the evidence against him.

III. The trial court erred in denying the appellant’s motion to suppress the evidence as a result of an illegal search and seizure.

IV. The trial court erred in allowing the State to amend the carrying a concealed weapon charge over the objection of the appellant.

I.

As to the appellant’s contention that he was denied a speedy trial, the evidence discloses that he was arrested and incarcerated in the Howard County Jail on November 22, 1974. On December 23, 1974 the appellant appeared in the District Court of Howard County and prayed a jury trial. The Public Defender’s Office filed its appearance and a motion for a speedy trial on behalf of the defendant on or about January 24, 1975. This motion, however, was filed in the district court and not in the circuit court where the appellant’s case had been transferred. On June 26, 1975 the appellant filed a motion for removal which was denied on July 30,1975. On November 5,1975 the appellant’s motion to dismiss the indictment for lack of a speedy trial was heard and denied. He was then tried and convicted on November 17,1975.

In order to determine whether the appellant has been denied a speedy trial we must, in making our independent constitutional appraisal, engage in a four-factored balancing test as delineated by the Supreme Court in Barker v. Wingo, 407 U. S. 514. The four factors are: (1) the length of delay; (2) reason for the delay; (3) the defendant’s assertion of right; (4) prejudice to the defendant.

1. Length of Delay

The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. Nevertheless, because of the imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily depeident upon the peculiar circumstances of the case. Barker v. Wingo, 407 U. S. at 530-531.

The delay with which we are concerned, in determining if there is a necessity for an inquiry into the other factors, is from the date of the appellant’s arrest, November 22, 1974, to the date of his trial, November 17, 1975. In Epps v. State, 276 Md. 96, the Court of Appeals held that a one year, fourteen day delay was sufficient to trigger the balancing process outlined in Barker. Consonant with this view is Smith v. State, 276 Md. 521, where a sixteen month delay was sufficient to enter into the balancing process. We are persuaded that the eleven month delay in this uncomplicated and run-of-the-mill case requires us to engage in the prescribed balancing test.

2. Reason For Delay

Closely related to length of delay is the reason the government assigns to justify the delay. Here, too, different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighed heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighed less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Barker v. Wingo, 407 U. S. at 531.

The principal reasons assigned by the State to justify the delay were the appellant’s prayer for a jury trial and his motion for removal. There is, however, nothing in the record to suggest that the appellant would have been brought to trial at an earlier date had he not filed the prayer for a jury trial or the motion for removal. The fact of the matter is that after the appellant prayed a jury trial, the case was never set in for trial until November 5, 1975. It was then postponed at the request of the State until November 17, 1975. The way we view it, the State must be charged with the entire delay except the period from June 29, 1975, the date the appellant filed his motion for removal, to July 30, 1975, the date his motion was denied.

S. Assertion of Right

The nature of the speedy trial right does make it impossible to pinpoint a precise time in the process when the right must be asserted or waived, but that fact does not argue for placing the burden of protecting the right solely on defendants. A defendant has no duty to bring himself to trial, the State has that duty as well as the duty of insuring that the trial is consistent with due process. Barker v. Wingo, 407 U. S. at 527.

At the hearing on the motion to dismiss the indictment for denial of a speedy trial, a representative of the Public Defender’s Office testified that on January 24, 1975 the appellant’s application for appointed counsel was approved; that a Public Defender filed his appearance and a motion for a speedy trial on behalf of the defendant soon thereafter. This motion, however, was not perfected because it was erroneously filed in the district court instead of the circuit court.

.4. Prejudice

Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Barker v. Wingo, 407 U. S. at 532.

In Moore v. Arizona, 414 U. S. 25, 26-27, the Supreme Court stated:

Moreover, prejudice to a defendant caused by delay in bringing him to trial is not confined to the possible prejudice to his defense in those proceedings. Inordinate delay,
“wholly aside from possible prejudice to a defense on the merits, may ‘seriously interfere with the defendant’s liberty, whether he is free on bail or not, and . . . may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.’ United States v. Marion, 404 U. S. 307. . . .”

In the present case, the appellant was confined to jail for approximately one year before being brought to trial. At the motion to dismiss the indictment for denial of speedy trial, the appellant testified that his pretrial incarceration not only created anxiety but financially ruined his automobile repair business.

The Balancing

Having applied each of the four factors set forth in Barker, we conclude that the length of delay and reason for delay in bringing the appellant to trial militates against the State in the balancing process. We further conclude that although the assertion of the right to a speedy trial is a neutral circumstance, the factor of prejudice enures to the benefit of the appellant in the balancing process.

Under the circumstances we are persuaded that the appellant was denied his constitutional right to a speedy trial. Therefore, as required by Strunk v. United States, 412 U. S. 434, we reverse and remand the case for dismissal of the indictment. In view of this holding, it is not necessary to consider the other issues raised by the appellant.

Judgments reversed.

Case remanded for dismissal of charges.

Costs to be paid by Howard County.


text:
    GHULAM MOHAMMID NASIM v. STATE OF MARYLAND
    [No. 151,
    September Term, 1976.1

      Decided December 3, 1976.

    The cause was argued before Menchine, Moore and Liss, JJ.

      Michael R. Malloy, Assistant Public Defender, with whom was Alan H. Murrell on the brief, for appellant.

      Bernard A. Raum, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Sandra A. O’Connor, State’s Attorney for Baltimore County, and John F. Hanson, Assistant State’s Attorney for Baltimore County, on the brief, for appellee.
   Menchine, J.,

delivered the opinion of the Court.

Ghulam Mohammid Nasim (appellant) was brought to a jury trial in the Circuit Court for Baltimore County on three two-count indictments.

In indictment 51980 it was charged in the first count that appellant “did wilfully and maliciously set fire to and burn the dwelling house of Charles Leroy Heim, located at 105 E. Burke Avenue, Towson, Maryland,” in violation of Code Article 27, § 6. In the second count of that indictment it was charged that appellant “did wilfully and maliciously set fire to and burn the storehouse of Charles Leroy Heim, located at 105 E. Burke Avenue, Towson, Maryland,” in violation of Code Article 27, § 7. Appellant was found guilty under count two; not guilty under count one. He was sentenced to imprisonment for fifteen years.

In indictment 51979 it was charged in the first count that appellant “unlawfully, knowingly and wilfully falsely stated in a sworn statement on proof of loss to the Home Insurance Company in regard to policy number HP 262-1472 that said loss did not originate by any act, design or procurement on [his] part.” (fraudulent claim of entitlement). In the second count of that indictment it was charged that appellant “unlawfully, knowingly and wilfully falsely stated in a sworn statement in proof of loss to the Home Insurance Company in regard to policy number HP 262-1472 that said loss under the aforementioned policy is in the amount of $48,000.00.” (false claim of amount of loss). Both charges were alleged to have been in violation of Article 48A, § 233. Appellant was convicted under both counts. He was sentenced to a consecutive term of six months under count 1; to a concurrent term of six months under count 2.

He was found not guilty under the third indictment.

In this appeal appellant attacks the admission of evidence of previous fires, asking:

“Did the trial court commit prejudicial error in admitting evidence of previous fires involving the Appellant’s property?
A. Was the evidence of the fires irrelevant?
B. Was the evidence of the fires unduly prejudicial?
C. Was the error not harmless beyond a reasonable doubt?”

We believe that our discussion of the questions presented should be prefaced by a brief exposition of the manner in which they were presented below and the trial court’s basis for admission of the questioned evidence.

On January 14, 1976, trial counsel for the appellant filed a motion for discovery. On January 20, 1976, the State, answering that motion, disclosed, inter alia, the following:

“The State intends to call Baltimore County Fire Department Personnel identified herein as expert witnesses concerning Incendiary origin of fires, namely; that fires at 105 E. Burke Avenue, 625 Fairway Drive and 246 Burke Avenue, Baltimore County appeared to be of Incendiary origin.”

Thus alerted to the State’s purpose to offer evidence of other fires in properties owned or occupied by the appellant, his trial counsel moved early on to exclude evidence relating thereto. After selection of the jury but out of their presence, appellant’s trial counsel thus addressed the trial court:

“The Defendant makes a Motion that any and all evidence relating to fires or claims as a result of a fire made or purported to be made by the Defendant be excluded from any mention in these proceedings specifically. It is my understanding that the State intends to use facts and circumstances surrounding fires in 1965, 1968, or thereafter connected with buildings either owned by the Defendant, or leased by the Defendant, and also to introduce evidence with regard to insurance claims made in those regards.”

The record shows that there followed a lengthy discussion by the court with counsel for the State and the defense respecting the admissibility of such evidence. The judge, thereafter stated, inter alia:

“. .. at this point in time, I think that I must deny [the motion], and believe I am implying [sic] the principles set out in the Ross[ ] case and Woods [] case, since one, the fire goes back to ’65, and the circumstances of the fire and instrumentality of the fire, the nature of the fire, certainly would be relevant, and more importantly, I would say critical to the presentation of the State’s case, and I will deny your motion on those two fires.” [625 Fairway Drive, October 7, 1965; 246 E. Burke Avenue, June 4,1968.]

We find that objections to introduction of the questioned evidence that followed thereafter have preserved the issue for our review. The questions presented require us to delineate at some length the facts and circumstances of the fire producing the subject substantive offenses and the facts and circumstances of the previous fires.

The testimony below dealt with three fires of importance to our review in this case. They are: (1) the fire forming the basis for the subject prosecutions at 105 E. Burke Avenue on August 21, 1974; (2) the fire at 625 Fairway Drive on October 7, 1965; and (3) the fire at 246 E. Burke Avenue on June 4, 1968.

1. The subject fire at 105 E. Burke Avenue on August 21, 197j.

Charles L. Heim, at a constable’s sale conducted on July 12, 1974, had purchased for himself and his wife the property known as 105 E. Burke Avenue, Towson, Maryland. The sale was in execution of a judgment of the District Court of Maryland for Baltimore County obtained by Carmen J. diPasquale against Ghulam M. Nasim, the appellant. Following the sale, the purchaser sent a letter to the appellant, advising him of the purchase at judicial sale and giving thirty days for Nasim to vacate the premises.

On the morning of August 21, 1974, a hearing was held in the District Court of Maryland for Baltimore County, on a motion in behalf of the appellant to set aside the sale. The motion was denied. The appellant was not present at the hearing.

On August 21, 1974, at 9:30 p.m., Heim, who resided in the adjoining property at 107 E. Burke Avenue, observed that 105 was ablaze. The fire department of Baltimore County responded to his call.

Robert Louis Snyder, a Lieutenant of the Baltimore County Fire Department, assigned to investigate fires of suspected incendiary origin, made an inspection of the fire damaged premises. This witness, assigned to the Fire Investigation Division since 1968, also had substantial theoretical training in arson detection at colleges within and without the State of Maryland. He had given testimony in at least fifteen arson cases. His investigation showed two points of origin of the fire. As to the first, an area at the front door, he said the fire was “very intense, burning completely through the flooring. It even burned into the joist of the second floor.” As to the second, in a stairwell leading from the first floor to the basement, he said the “steps [were] completely burned out. Part of the support risers were burnt out also.”

His continuing testimony included the following:

“. . . In the basement was observed what is known in our trade as a plant — arson plant, which involved an iron on an ironing board connected to a regular electrical current. Underneath the iron ran a cotton sheet over across the refrigerator or chest type freezer, and lid — continued on into and was stuck — the sheet was stuck in a fuel tank. Also, I observed that there was fuel on the floor. The plant went off, as we call it, — ignited because of the heat of the iron, and the trailer had extended on over and partially had burned, but that got on the floor—
Q It didn’t go to the oil tank?
A Did not, but did burn on the floor area igniting the oil on the floor.
Q Now, from your experience could you say whether that iron caused that fire in that area?
A It was believed it caused the fire, yes, sir.
Q Was the electricity on?
A Yes, sir. It was.
Q How did you determine that?
A Well, sir, I observed that the turn of the meter was going around. That meter was marked floor number 1. There was two meters in the house. Floor number two was not moving. The counter-wheel that goes around on floor number 1 — meter number 1 for the first floor was on. Also, the electric socket was tested by the Chief Electrical Inspector of Baltimore County.
Q Do you know the results of that test?
A Yes, sir. The test resulted in that the current was — switch was on for the socket. The switch on the iron was in a position of being on.
Q Did you recover the iron?
A Yes, sir. I have it with me.”

The witness then testified that there was other evidence that the fire of August 21, 1974, was of incendiary origin. He said:

“Q Now, from your experience could you say whether or not that [fire of two origins] was of an incendiary origin?
A Yes, sir. It is.
Q How could you say that?
A Well, due to the extreme burning of the flooring without a combustible load.
When we say combustible load, it would be furniture. There was nothing in that area that would cause the intense heat. Also, the jagged edges of the flooring where the flooring completely burned away, and also the fire had burned down into the flooring joist. Fire burns up; heat rises, but when it goes down, there has to be something to pull the fire down. The same with the stairwell. The stairwell, going to the second point, were separated far enough that the fire in the stairwell, could not have completely burned out the area in front of the front door.
Q Now, from your experience could you comment one way or the other as to whether or not either of these fires was caused accidentally or by natural causes?
A No, sir. It is my opinion that the two fires, both fires were caused by an incendiary origin. There was no defective wiring in that area, because it was checked by myself, and there is no evidence of any malfunction of the electrical system.”

At the time of the fire Heim did not have a key to the premises 105 E. Burke Avenue, Nasim having refused to deliver one.

Nasim was observed to be within the premises on numerous occasions after the constable’s sale. He was not seen there, however, on the date of the fire.

The Home Insurance Company had issued a policy of fire insurance for 105 E. Burke Avenue to the appellant on July 16, 1972, for a term of three years. The initial amount of insurance coverage is not shown in the record, but on April 23, 1974, had been increased to $45,000 on the building; $27,000 on the contents of the building; $9,000 additional living expenses, and $4,500 for appurtenant structures.

In early August, 1974, prior to the date of the fire, the appellant, Edith Peterson, and Randy Sellman had removed bedroom, dining room, living room, and kitchen furniture and other household items owned by Peterson from the premises 105 E. Burke Avenue. In consequence, there was, at the time of the fire, very little furniture on any floor of the building. Nonetheless, the appellant made oath in a proof of loss executed on November 20, 1974, that he had sustained a loss'from the fire in the amount of $48,000.

One Norman Goodman, a Certified Public Insurance Adjuster, who had been requested by the appellant to adjust the alleged losses, testified that on August 26, 1974, he had cancelled a contract to do so because he believed Nasim had no insurable interest in the building and that the sparse contents at the time of the fire were not badly damaged.

Nasim on August 12, 1974, had filed a police complaint that some unknown person had pushed open the kitchen window of 105 E. Burke Avenue. A police investigator met Nasim at the premises and requested appellant to advise whether any property was missing. No response was thereafter forthcoming.

2. The fire at 625 Fairway Drive on October 7, 1965

Lt. William Harmon, an investigator of suspected arsons for the Baltimore County Fire Department, with seventeen years experience, testified that this fire, originating in the basement, was “caused by an iron that was left on an ironing board in the basement.” The premises were occupied by Dr. Nasim, who had explained that “his son had been playing in the basement before they left the house.” The witness added that the iron was on the “on” position and could have been turned on by a child, or could have been set there purposely. The record shows that the departure of Nasim from 625 Fairway Drive had preceded discovery of the blaze by a next door neighbor by a very short interval.

Cpl. John Raymon, of the Baltimore County Police, with eighteen and one-half years experience, who had served in the Burglary Investigation Unit for seven years, made an investigation at the fire scene. He testified that he had responded to the fire at 9:15 a.m. on October 7, 1965, following a call by the next door neighbor. He testified that the appellant stated to him in the course of the investigation that “he had left that morning at 9:15, and that he had secured the house, but it was possible he may have left the kitchen door unlocked.”

There was evidence that the appellant instituted an action against Government Employees Insurance Company in connection with this fire loss and that coverage under its policy had been increased from $6,400 to $15,000 on October 2,1965.

3. The fire at 24 6 E. Burke Avenue on June 4, 1968

Paul H. Reinecke, a Fire Chief of the Baltimore County Fire Department since 1967, had attended arson seminars within and without the State, had many years of in-service training and taught arson seminars at the Catonsville Community College. He stated that his personal examination on June 4,1968, showed four separate origins of a fire in offices occupied by the appellant in the building at 246 E. Burke Avenue. He found three separate origins of the fire caused by flammable liquid with a flash point of 125° fahrenheit. The fourth origin was in a closet containing a gas jet in the open position. The four origins of the fire all were within the office occupied by the appellant and all were incendiary in nature. He testified that there was no forced entry into the building.

Nasim had claimed that his personal difficulties with drug addicts was the likely cause of the June 4, 1968 fire. Corporal Raymon testified that the fire appeared to be arson, and that he saw no evidence of a forced entry into the office. He acknowledged there was a broken window in the office, but pointed out that it had been broken from within the office by throwing a Venetian blind through the glass. He said that the Venetian blind and all glass particles were on the outside of the building.

A former employee of the appellant testified that before she began giving testimony in the United States District Court for the District of Maryland in an insurance claim stemming from this fire, Nasim “told me not to say anything .. . said to tell them that everything was destroyed.” She added that it was not true that everything had been destroyed.

Nasim denied that he had set any of the three fires. His testimony was, however, marked by manifest rancor toward those who, in his view, had wrongfully deprived him of his property.

We agree with the trial judge that Ross v. State, 276 Md. 664, 350 A. 2d 680 (1976), importantly bears upon the resolution of the questions presented. Ross lucidly restates the general rule and the well-recognized exceptions governing admission of evidence of independent offenses, saying at 669-70 [684]:

“The frequently enunciated general rule in this state, followed uniformly elsewhere, is that in a prosecution for a particular crime, evidence which in any manner shows or tends to show that the accused has committed another crime wholly independent of that for which he is on trial, even though it be a crime of the same type, is irrelevant and inadmissible. Harrison v. State, 276 Md. 122, 345 A. 2d 830 (1975), MacEwen v. State, 194 Md. 492, 500, 71 A. 2d 464 (1950); Young v. State, 152 Md. 89, 91, 136 A. 46 (1927); Weinstein v. State, 146 Md. 80, 88, 125 A. 889 (1924); Wethington v. State, 3 Md. App. 237, 240, 238 A. 2d 581 (1968); Gorski v. State, 1 Md. App. 200, 202, 228 A. 2d 835 (1967). This principle is merely an application of the policy rule prohibiting the initial introduction by the prosecution of evidence of bad character. Thus, the state may not present evidence of other criminal acts of the accused unless the evidence is ‘substantially relevant for some other purpose than to show a probability that he committed the crime on trial because he is a man of criminal character.’ C. McCormick, Evidence § 190 (2d ed. 1972).
* * *
“There are exceptions to this general exclusionary rule which, perhaps, are equally well-recognized. Thus, evidence of other crimes may be admitted when it tends to establish (1) motive, (2) intent, (3) absence of mistake, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, and (5) the identity of the person charged with the commission of a crime on trial. Wentz v. State, 159 Md. 161, 164, 150 A. 278 (1930); Cothron v. State, 138 Md. 101, 110, 113 A. 620 (1921); Chandler v. State, 23 Md. App. 645, 650, 329 A. 2d 430, cert. denied, 274 Md. 726 (1974); Wethington v. State, Gorski v. State, both supra. Additional exceptions have also been recognized: When the several offenses are so connected in point of time or circumstances that one cannot be fully shown without proving the other, and to show a passion or propensity for illicit sexual relations with the particular person concerned in the crime on trial, Berger v. State, 179 Md. 410, 414, 20 A. 2d 146 (1941); and to prove other like crimes by the accused so nearly identical in method as to earmark them as the handiwork of the accused. C. McCormick, Evidence § 190, supra.”

Another decision of significance in the subject case is McDowell v. State, 231 Md. 205, 189 A. 2d 611 (1963), wherein it was said at 210 [614]:

“Arson is likely to be a clandestine offense and proof of it must often be by circumstantial evidence and inferences which may reasonably be drawn therefrom.”

Thus, generally, evidence tending to show malice or motive is admissible in arson cases. Such as, for examples particularly applicable here, evidence showing that the accused increased fire insurance coverage or attributed excessive value to damaged personalty; (Hooker v. State, 98 Md. 145, 161, 56 A. 390, 394 (1903)) or tending to show animus stemming from interference by a landlord with possession by a defaulting tenant. McDowell v. State, supra, at 208, 214 [612-13, 616].

Appellant suggests that there is no showing that the appellant’s efforts to collect insurance benefits from the 1965 and 1968 fires had been fraudulent. Ergo, he argues, evidence concerning such efforts was not relevant in the subject case. We think that the questioned evidence was such as would reasonably permit a conclusion that those efforts were indeed fraudulent and thus be admissible on that account. In any case, even if we assumed the absence of fraud in efforts to secure insurance benefits from the prior fires, the questioned evidence plainly was relevant on other grounds.

We note of course, that there were other, more significant facts, than the mere filing of claims and collecting or attempting to collect for fire losses. The similarity of the cause of the October 7, 1965 and the August 21, 1974 fires was striking. In each instance an electric iron left in an “on” position on an ironing board had effected ignition of the fires.

Appellant argues that because the witness describing the Fairway Drive fire of 1965 conceded that the fire may have been of accidental origin, its relevancy to the subject case was destroyed. We do not agree. Even if it is assumed that the 1965 fire was not of incendiary origin, the relevance of that incident to the subject case is not impaired. See: People v. Furgerson, 209 C.A.2d 387 (California, Fourth Dist. 1962).

Whether the iron had been left “on” in 1965 intentionally, accidentally or was the product of a child’s innocent act, the fact remains that Nasim knew that such an occurrence would speedily produce a damaging fire. This circumstance alone, in view of the fact that such a device was utilized to ignite highly combustible materials in the subject fire gave relevance and materiality to the 1965 fire. It tended “to earmark [it] as the handiwork of the accused.” Ross, supra, 276 Md. at 670, 350 A. 2d at 684.

The 1968 fire in the office of the appellant at 246 E. Burke Avenue also tended to show a “signature” of the accused. Appellant attributed that fire to a “break in” by another. The evidence demonstrated the falsity of that position, showing instead that the breaking had been accomplished from within the office. So, in the subject case, the evidence would permit the trier of fact to conclude that the notification to the police of an alleged “break in” at 105 E. "Burke Avenue on August 12, 1974, was contrived by the appellant in an effort to divert suspicion from himself with respect to the later fire.

We are persuaded that the questioned evidence, if believed, tended to prove that 105 E. Burke Avenue was burned to defraud the insurer and/or because of rage engendered by a fancied oppression.

Moreover, the incidence of multiple fires in properties owned or occupied by Nasim furnishes an additional basis for their admission. In United States v. Woods, 484 F. 2d 127 (4th Cir. 1973), in which the accused had been convicted of the first degree murder of a foster son, the trial court had admitted evidence as to what had happened to other children in the care of the accused. In affirming, the Court, after pointing out (at 133) “... that when the crime is one of infanticide or child abuse, evidence of repeated incidents is especially relevant because it may be the only evidence to prove the crime” stated at 135:

“We reject defendant’s argument that the proof was not so clear and convincing that its admissibility should not be sustained. As we stated at the outset, if the evidence with regard to each child is considered separately, it is true that some of the incidents are less conclusive than others; but we think the incidents must be considered collectively, and when they are, an unmistakable pattern emerges. That pattern overwhelmingly establishes defendant’s guilt.”

We think that the rationale for decision in Woods, supra, applies with equal force in the subject arson and fraud prosecutions. We believe that here too “an unmistakable pattern emerges” when the questioned evidence is considered collectively. That pattern would permit, if it would not compel, the triers of fact to conclude that the guilt of the accused had been shown beyond a reasonable doubt.

We regard Wimpling v. State, 171 Md. 362, 189 A. 248 (1937), cited by appellant, to be so markedly different factually that it offers him no support.

Because we find no error in the admission of the questioned evidence, no issue of harmless error arises.

Judgments affirmed.

Appellant to pay the costs.

      . Article 27, § 6 reads as follows:
      “Any person who wilfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels or procures the burning of any dwelling house, or any kitchen, shop, barn, stable or other outhouse that is parcel thereof, or belonging to or adjoining thereto, whether the property of himself, or of another, shall be guilty of arson, and upon conviction thereof, be sentenced to the penitentiary for not more than thirty years.”

      . Article 27, § 7 reads as follows:
      “Any person who wilfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels or procures the burning of any barn, stable, garage, or other building, whether the property of himself or of another, not a parcel of a dwelling house; or any shop, storehouse, warehouse, factory, mill or other building, whether the property, of himself or of another; or any church, meetinghouse, courthouse, workhouse, school, jail or other public building or any public bridge; shall be guilty of a felony and upon conviction thereof, be sentenced to the penitentiary for not more than twenty (20) years.”

      . Article 48A, § 233 reads as follows:
      “Any agent, broker, solicitor, examining physician, applicant, or other person, who knowingly or wilfully makes any false or fraudulent statement or representation in or with reference to any application for insurance; or for the purpose of obtaining any money or benefit, knowingly or wilfully presents or causes to be presented a false or fraudulent claim; or any proof in support of such a claim for the payment of the loss upon a contract of insurance; or prepares, makes, or subscribes a false or fraudulent account, certificate, affidavit or proof of loss, or other document or writing, with intent that the same may be presented or used in support of such a claim, shall be guilty of a misdemeanor, and, upon conviction, shall be punished by a fine of not more than one thousand dollars ($1,000) or by imprisonment for a period of not more than six (6) months, or both such fine and imprisonment in the discretion of the court.”

      . Ross v. State, 276 Md. 664, 350 A. 2d 680 (1976).

      . United States v. Woods, 484 F. 2d 127 (4th Cir. 1973).