text:
    SARAH E. JOHNSON v. ODESSA B. ROBINSON
    [No. 909,
    September Term, 1974.]

      Decided June 4, 1975.

      The cause was argued before Moore, Lowe and Mason, JJ.

      Thomas F. Mudd for appellant.

      Ernest C. Dickson for appellee.
   Lowe, J.,

delivered the opinion of the Court.

In Slear v. Jankiewicz, 189 Md. 18, 24, Judge Markell quoted without need for attribution “You take my house when you do take the prop that doth sustain my house.” The original author continued “You take my life when you do take the means whereby I live.” Appellant may well have added “You take my land when you deny me the way to its enjoyment.”

On May 20, 1953 Sarah Johnson contracted to sell to Odessa B. Robinson “20 acres” of land for two thousand dollars, nineteen hundred of which was to be paid “at a rate of $35.00 per month until paid in full.” Although Mrs. Robinson was limited by her counsel to testifying to ownership, her son Otay Smith, having “handle[d] all the transactions in connection with this property” testified at length. Actually, by an affirmative response to his mother’s counsel, it was indicated that it was he who had “entered into [the] contract to buy this 20 acre tract and a fraction acre of land through [his] mother.” We shall thus refer to Mr. Smith as the purchaser.

The final payment for the property was at least a decade later, and while the parties were not certain actually when, the chancellor found it to be in 1964. The extended period of payment, as well as the looseness of the arrangement was explained by Mr. Smith indirectly when he testified to his relationship with Mrs. Johnson whom he “trusted like a mother,” and more directly when he said:

“ . . .1 actually borrowed more money, that is why it took more than ten years to pay for. See, I made two personal loans from her. I borrowed $300.00 from her and I borrowed $600.00 from her and this was all paid for in ten years. . . .”

The conveyance finally came by way of an undated deed, notarized on March 6, 1972 and recorded the following day. The eight year delay following final payment was at least partially attributable to Mrs. Johnson who declined to execute a deed until she established the boundary lines of other land she chose to retain which land was ultimately determined to be situate behind that which she had sold appellee. Mrs. Johnson was concerned that the retained land which had not been accurately located would be denied access to a public road by the conveyance to appellee.

“I wanted an outlet. I was fastened in. I didn’t know where my land was at first, see. And I had to pay the taxes every year for twenty-five acres of land and four acres. I didn’t know where it was at.”

In 1967 or 1968 Mr. Smith pressed for his deed. It was then that he first heard that the reason Mrs. Johnson was hesitating to provide the deed was because she wanted some means of ingress to and egress from her land-locked property. Mr. Smith then:

“ . . . asked her where was the land. She said she was going to have it surveyed and let me know. I said on my plat it doesn’t show you own any land anywhere back there.”

Mr. Smith testified further on cross-examination that he did recall telling Mrs. Johnson prior to the deed’s execution that he was “going to let her out.”

“I said we would try to work out something if she would tell me where the land was but she couldn’t tell me where the land was. She said in the back. I think that is all I can get out of her here. I said when are you going to have it surveyed but she never had it surveyed and showed me nothing. The only time I found it is when I went down to the court house and checked it out. That was in 1971 or 1972.”

The lost land apparently had as its origin a deed dated 1873, describing a 70 acre tract which was owned by two persons as tenants in common. The tract was physically divided, ultimately descending, one-half to Mrs. Johnson, the adjoining one-half to Nathaniel Fleet, et ux. by mesne conveyance. The division line in the rear of Mrs. Johnson’s half was never clearly established; however, from time to time she sold off several small parcels of her land near the public road on which it bordered and where her ownership was unquestioned. The final sale of 20 acres was the last to which she could safely provide title until the boundary between her and Mr. Fleet was established. The remaining few acres were reserved and might serve as a cushion for error until the division line was established.

That line was finally established by agreement consummated by a derivative deed confirming the agreed boundary dated February 8, 1968 between appellant and the Fleets. The deed recited the common ownership in 1873, its division, the lack of record of such division and the purpose and desire to confirm that division of record. A surveyed boundary line was agreed to in this confirmatory deed.

The approximately 20 acres included in the conveyance to appellee together with appellant’s “lost land” is shaped like an awkward funnel with the narrow spout meeting the road for only 70 feet. The remainder of appellee’s 20 acres lay between the road and Mrs. Johnson’s retained land which lay at the top of the funnel between Mr. Fleet and appellee.

Appellee’s own limited road front may account for his reluctance to share access to the road with Mrs. Johnson, however, while on the stand, Mr. Smith denied that he had “no intention of letting her [Mrs. Johnson] through [the] property.” Indeed he said he would “let her out”:

“If there is any way humanly possible that it wouldn’t affect my place, or what I want to do to the property.”

Regrettably, to that intended purpose we are not made privy that we might have more clearly understood his reply. We know, however, why Mrs. Johnson finally signed the deed without the desired reservation: \

“Why did you ultimately sign the deed and deliver the deed without resolving the access problem?
A. Well, he cut up and act so nasty about it and told me that he had paid $50.00 for the deed and he just went on and unnerved me and I forgot when I went to Mr. Lancaster to say that I didn’t have no outlet.
Who is Mr. Lancaster?
A. He is a lawyer.”;

although Mr. Smith did not recall that version of her oversight:

“Q. Did she at that time make any statement to her attorney that she had any land that she wanted a right of way on your property?
A. Yes, she did. She told Mr. Lancaster, said Mr. Lancaster, I am messed up here, somehow or another I locked myself in. Said I sold this gentleman here some land, he has paid for it, he has the tax receipt and all, the receipts he has paid for it and I locked myself in and he thinks I should give him a deed. I said I wasn’t going to give him a deed until I talked to you.
So he advised her, said this man has paid for it, some ten years prior to now, he said he has paid for it, the only thing you can do is go ahead and give this man his deed. He said you sign it and I will notarize it, which he did in his office.
That was in ’72, ten years after I had paid for it.”

Finding no express reservation of a right-of-way as alternatively prayed by the appellant in her suit in the Circuit Court for Charles County, the chancellor narrowed the issue to whether or not appellant could claim a way of necessity which was her other prayer. The chancellor found as a fact “that Mrs. Johnson owned a tract of land of which the conveyance to Mrs. Robinson was a part.” As a consequence “If she does have an easement of necessity it must be by implied reservation as she is seeking a right of way across property which she conveyed for the benefit of property which she retained.”

He then concluded by quoting from Burns v. Gallagher, 62 Md. 462, 471

“ ‘. . . that no easement or quasi easement can be taken as reserved by implication, unless it be de facto annexed and in use at the time of the grant, and it be shown moreover to be actually necessary to the enjoyment of the estate or parcel retained by the grantor.’ ”

The chancellor then added:

“Pacts in this case clearly show the necessity for the right of way, however, there is not showing that the right of way was in use at the time of the sale of the property or at the time of the settlement.
For these reasons the relief prayed by the Plaintiff is denied. . . .”

A right-of-way of necessity is supposed by some to exist merely by reason of the fact that without it one has no access to his land. Brice v. Randall, 7 G. & J. 349. Such does not appear to be the case. In order to establish such a way, it must be shown that sometime in the past the land for the benefit of which the way is claimed, and that in which it is claimed, belonged to the same person.

Such an easement usually arises (and originally arose exclusively) when one conveys land to another which is accessible from a public road only through retained land of the grantor or through land of a stranger. Fox v. Paul, 158 Md. 379, 386. This right does not arise from any express grant but from a presumption that it was the intention of the parties that the grantee should have access to his land over the lands of the grantor. McTavish v. Carroll, 7 Md. 352. It has come to be referred to as an implied grant. Duvall v. Ridout, 124 Md. 193.

A second method by which a way of necessity may be given effect is by implied reservation. It wasn’t until 1879 that the Court of Appeals had reason to decide whether or not a way of necessity might thus arise in Maryland. In an analytical opinion delivered in Mitchell v. Seipel, 53 Md. 251, the Court decided that a grantor who had denied himself access to reserved land by not expressly reserving an easement through land he had conveyed may in cases of strictest necessity be permitted a way of necessity.

“Finding then no binding decision of this Court, and no decided preponderance of authority in this country, to prevent us from following the law as it has recently been settled by the decisions in England, and being satisfied the distinction so clearly drawn in those decisions between what has been called an implied grant, and what has been attempted to be established under the name of an implied reservation, is not only founded in reason, but has existed almost as far back as the law upon the subject can be traced, we shall apply it to the case before us.
It remains then to ascertain whether this alley is a way of necessity, so as to fall within the exception to the second proposition stated in Wheeldon vs. Burrows. [Law Rep., 12 Ch. Div. 31].” Mitchell, 53 Md. at 273.

The “second proposition” of Wheeldon had been previously discussed in Mitchell, 53 Md. at 269:

“In an able and extended opinion delivered by THESIGER, L. J., all the leading English decisions are reviewed, and as the result of this review two propositions are stated: First, that all these continuous or apparent easements, or in other words all these easements which are necessary to the reasonable enjoyment of the premises granted, and which have been and are at the time of the grant used by the owner of the entirety for the benefit of the part granted will pass to the grantee under the grant. Second, that if the grantor intends to reserve any right over the tenement granted it is his duty to reserve it expressly in the grant, and to this the only exception is of ways or easements of necessity. Both these general rules are founded upon the maxim that ‘a grantor shall not derogate from his grant.’ ”

Five years later the “leading case” of Burns v. Gallagher, supra, 62 Md. 462, firmly established the implied reservation as part of our law. The sentence quoted by the chancellor was rather a part of a general statement of law than án expression of a defined prerequisite in the rule under discussion: j

“For the principle is well settled, and it is founded in reason and good sense, that no easement or quasi easement can be taken as reserved by implication, unless it be de facto annexed and in use at the time of the grant, and it be shown moreover to be actually necessary to the enjoyment of the estate or parcel retained by the grantor. And such necessity cannot be deemed to exist if a similar way or easement may be secured by reasonable trouble and expense, and especially not if the necessary way or easement can be provided through the grantor’s own property. In order to give rise to the presumption of a reservation of an existing easement or quasi easement, where the deed is silent upon the subject, the necessity must be of such strict nature as to leave no room for doubt of the intention,, of the parties that the adjoining properties should continue to be used and enjoyed, in respect to existing easements or quasi easements, as before the severance of ownership; for otherwise parties would never know the real purport of their deeds. K the grantor intends to reserve any right or easement over the property granted, it should be done by express terms, and not afterwards require a plain grant, it may be for full consideration, to be limited and cut down by any mere implied reservation of privilege^ over the property granted. It is only in cases of the strictest necessity, and where it would not be reasonable to suppose that the parties intended the contrary, that the principle of implied reservation can be invoked.” Id. at 471-472. j

The Court of Appeals emphasized, that a reservation would be implied only in extraordinary circumstances, i.e., where there was clear evidence that/despite the absence of an express designation in the deed, the parties intended that a right-of-way would be reserved. The rule was described by the Court in terms of the usual situation where both parties were aware prior to the deed’s signing that the right-of-way was the grantor’s sole means of access to his property, as well as that it was and must continue to be used by him. The parties’ knowledge assured their awareness of “the real purport of their deeds” and created a “presumption of a reservation.” We may conclude that the key criteria for the presumption are knowledge of the necessity and some sort of objective manifestation of the parties’ intention to reserve a right-of-way. It would thus appear that the Burns Court was not intending to espouse anything more than that the easement must be “apparent” for an implied reservation, serving as some notice or warning to the purchasing party that an easement may exist.

In the reverse but analogous situation an implied grant will exist where the necessity of an easement for the benefit of a grantee is apparent to the grantor:

“And that being so, by analogy to the well settled principle that all apparent easements or quasi-easements which are necessary to the reasonable enjoyment of the premises granted, and which have been and are at the time of the grant, used, or allowed to be used, by the owner of the entirety for the benefit of the part granted, will pass to the grantee by implication.” Burns, 62 Md. at 474. [Emphasis added in part and deleted from original].

The same principle is applied in the quasi-easement situation. A “quasi-easement” is a legal fiction developed to overcome the premise in law that one cannot have an easement over one’s own land. When one utilizes a part of his land for benefit of another part and the land is separated without reservation or grant, a quasi-easement is implied. The phrase is no more than a convenient expression for an owner’s utilization of one part of the land for the benefit of the other. Tiffany Real Property, (3d ed.), § 781.

When the owner transfers the quasi-dominant portion of his land, it is said that the quasi-easement implied by law goes with it to the grantee on the presumption that the grantor and grantee intended and expected that it should pass. The Courts merely declare that such an intention may be presumed from the apparent dependence of one piece of land upon the other. Knight v. Mitchell, 154 Md. 102, 105-106.

Although many of the older cases include in their quotes from Bums, supra, the language “in use at the time of the grant,” no case to our knowledge has turned on that issue. Even those mentioning either the phrase or cases utilizing the phrase acknowledge the requirement is that the easement be “apparent and continuous.” In Dalton v. Real Estate and Imp’vt. Co., 201 Md. 34, 46, Chief Judge Hammond made no reference to a required “use” of the quasi-easement but set forth the generally accepted tests of “continuous, apparent and necessary.” Significantly, though, he cited Burns as authority therefor, indicating not only his awareness of the Burns statement quoted by the chancellor below, but also his recognition of the “continuous and apparent” test as the test applicable to implied reservations and grants:

“Nevertheless, when the owner of property has used one part for the benefit of another in such manner that there would arise a presumption that an easement existed if the two parts had been held by different owners, then, upon conveyance of the part so used, there is a q'¿¿a,si-easement which will be granted by implication as an easement to the purchaser of the other or dominant part, provided the use has been such that the easement would be classed as continuous and apparent, and necessary to the reasonable enjoyment of the property conveyed. Eliason v. Grove, 85 Md. 215, 36 A. 844, Burns v. Gallagher, 62 Md. 462. Continuous and apparent easements in the early law did not include ways. However, the doctrine of q^asi-easements has been extended to include established ways where they are reasonably necessary to the enjoyment of the property conveyed, and this Court has so held.”

Chief Judge Hammond did indeed recognize a distinction between implied grants and implied reservations; however, it was in the degree of necessity rather than in use:

“A distinction has been maintained in the law between implied grants and implied reservations. If an easement is continuous and apparent and necessary to the reasonable enjoyment of the premises granted, it will be implied that the grant included the easement. However, if a grantor intends to reserve any rights or uses in or over the tenement granted, he must reserve them expressly, and the only exception is of easements, including ways, of actual, strict necessity.”

We conclude that the Bums Court’s example of an easement “in use at the time of the grant” was but one way a “necessary and continuous” easement could be made “apparent” to a purchaser. Dalton, supra, 201 Md. 34. A precise definition of these terms appears in Tiffany, Real Property (3d ed.), § 784. Those definitions were relied on in Slear, supra, 189 Md. 18; McConihe v. Edmonston, 157 Md. 1, 11 and most extensively in Kelly v. Nagle, 150 Md. 125, 132, from which we quote:

“It is also well settled that such quasi easements as pass by implication and ripen into easements for the benefit of the grantee of the dominant estate, must have been, and must be at the time of the conveyance, apparent and continuous. In Tiffany on Real Property, vol. 1, page 706, it is stated: ‘That an easement to be thus created by implied grant must be apparent, is conceded by all decisions; and it is apparent, it is said, for this purpose, if its existence is indicated by signs which must necessarily be seen, or which may be seen or known on a careful inspection by a person ordinarily conversant with the subject.
In other words, to be apparent, as used in this connection requires the quasi easement or use enjoyed by the dominant tenement and imposed as a burden upon the servient tenement, must be visible, or such as would come to the knowledge of a prospective purchaser of either the dominant or servient estate by such an examination of the premises as is ordinarily made by one desiring to purchase. In Eliason v. Groves, supra, this Court said: ‘Whilst courts should not be too ready to sustain grants by implication, yet if at the time of the purchase of the property there are visible and apparent easements and privileges annexed to it which are necessary for its reasonable enjoyment, we- must assume that «they weré taken into consideration when the price was agreed upon and that the use of them was paid for. . . .’ [Emphasis added].
In addition to being apparent, the quasi easement must be continuous. In determining what constitutes a continuous easement or quasi easement, there is a difference of opinion as expressed in the decisions of the courts. In some of these cases the courts hold that an easement is continuous if no act of man is necessary to its continued exercise; cases holding this view being reported in Mississippi, Rhode Island and Michigan. The view adopted by other courts is, that if there is a permanent adaptation of the two tenements to the exercise of the easement, it is continuous. This view is supported by decisions in the states of New Jersey, Indiana and New York, and is in harmony with the decision of this Court in the case of Eliason v. Groves, supra. These principles being firmly established, not only by the weight of authority elsewhere, but by our own decisions, the question is of their applicability to the facts of the case now being considered.”

The definitions of continuous are both broad enough to encompass Mrs. Johnson’s way of necessity, so that that phase of the test would give us no pause even had the issue been raised.

The definition of “apparent” reinforces our conclusion that adequate notice of the existence of an easement is essential to a finding of implied reservation. In Slear, supra, 189 Md. 18, the Court repeated the Tiffany definition of an “apparent” easement as it did in McConihe and Kelly.

“if its existence is indicated by signs which must necessarily be seen, or which may be seen or known on a careful inspection by a person ordinarily conversant with the subject. ” [Emphasis added].

Such notice, McConihe indicates, “as would come to the knowledge of a prospective purchaser of either the dominant or servient estate ...” serves the underlying purpose of the rule. How can Mrs. Johnson be denied a way necessary to enjoyment of her property through the land of a purchaser who admittedly had notice of the problem before the deed was signed at the instance of that purchaser?

We acknowledge that the appellee did not originally contract to share an entrance with appellant, although that necessity became apparent before the deed was signed. When, prior to settlement, the appellee realized the land would be encumbered by a way of necessity, he could have declined tó proceed and demanded return of the purchase price, just as would have been his right had there been an express easement encumbering the land. He admitted that he would “try to work out something” but ultimately chose instead to demand a deed. We equate his admission of knowledge of Mrs. Johnson’s dilemma with the notice a purchaser would receive from a physically “apparent” easement. The purchaser’s actual knowledge abundantly supplants notice generated by physical use of the easement which appellee may have “seen or known on a careful inspection.”

Upon remand the chancellor is directed to decree a way of necessity, the reasonable location of which he shall establish as to inconvenience appellee only so much as is necessary to provide appellant ingress and egress to her land.

Judgment reversed.

Case remanded for farther proceedings pursuant to this opinopinion.

Costs to be paid by appellee.

      . Mrs. Johnson admittedly didn’t recall:
      “I don’t kripw. I disremember. It has been so long I disremember when he finished paying.”

      . Appellee’s argument below that a way of necessity should exist over Mr. Fleet because he was last in the chain of title is without merit since he conveyed her nothing, merely confirming what she already owned. The loss of access to a public road came as a result of Mrs. Johnson’s deed to Mrs. Robinson, not the confirmatory action of Mr. Fleet.

      . Tiffany on Real Property, (3d ed.), § 781 says:
      “It is perhaps unfortunate that the courts, in determining whether, in a particular case, an easement corresponding to a pre-existing quasi easement has passed with the land, have usually failed to recognize that the question is primarily one of construction, and have instead undertaken to lay down absolute rules as to what characteristics the particular easement or quasi easement must have, implying that, if it has these characteristics, the easement will pass as a matter of law. The characteristics ordinarily referred, to in this connection are, as above indicated, that the user be apparent, that it be continuous, and, that it be necessary, each of which will be hereafter discussed in turn. But it does not seem that the presence or absence of any or all of these characteristics should be conclusive. Taking the case of a quasi easement which is not apparent, which is, not continuous and which is not necessary, nevertheless a conveyance in terms of the quasi dominant tenement should, it is conceived, be construed as a conveyance of the lands with an easement appurtenant thereto corresponding to the pre-existing quasi easement, if this accords with the probable intention of the parties. On the other hand, even though the quasi easement has all the three characteristics named, an easement corresponding thereto evidently does not pass with the land if the language of the conveyance shows clearly an intention otherwise, or if the circumstances are such as to exclude a construction of the language of the conveyance as inclusive of the easement. So it has been decided that an easement does not pass when the grantee of the land knows that the grantor has no intention that it shall pass.” [Emphasis added].


source: Caselaw Access Project

author: Gilbert, J.,

license: Public Domain

text:
    KENNETH TODD and JAMES EARL MERRYMAN v. STATE OF MARYLAND
    [No. 914,
    September Term, 1974.]

      Decided June 4, 1975.

      The cause was argued before Powers, Gilbert and Davidson, JJ.

      Weldon Leroy Maddox and Howard Norin, Assigned Public Defenders, for appellants.

      Bruce C. Spizler, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Milton B. Allen, State’s Attorney for Baltimore City, and Mark Kolman, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Gilbert, J.,

delivered the opinion of the Court.

Kenneth Todd and James Earl Merryman, appellants, were each convicted by Judge James A. Perrott, at a non-jury trial in the Criminal Court of Baltimore, of murder in the second degree (Md. Ann. Code art. 27, § 411), and each was sentenced to imprisonment for a period of twenty years. In this Court both Todd and Merryman challenge the sufficiency of the evidence. Todd individually poses three other questions for our review, namely: (a) an amendment of the indictment so as to add thereto the words “kill and” before the word “murder”, (b) the failure of the trial court to rule on Todd’s motion to suppress an in-court identification, and (c) the failure of the trial court to rule on Todd’s motion for a speedy trial.

THE SUFFICIENCY OF THE EVIDENCE

The evidence presented on behalf of the State demonstrated that Todd and Merryman, in company with Andra Lumpkin and George Benton, became involved in an altercation with the late Pauline Gordon, a sixty-two year old woman. During the altercation Mrs. Gordon was stabbed to death. Lumpkin, in exchange for the State’s promise not to prosecute, turned “State’s evidence.” Lumpkin related to Judge Perrott that as the four youths passed Mrs. Gordon she, without provocation, slashed Lumpkin upon the arm with a knife. Benton then kicked Mrs. Gordon, knocking her to the street, and then Todd and Benton fell upon her, and Todd repeatedly stabbed her. The stabbing seemingly occurred with a knife that had been in the possession of Mrs. Gordon. Merryman’s participation in the offense consisted of an initial kicking and then “standing around.”

An eyewitness, a seventeen year old youth, told Judge Perrott that he had observed the entire occurrence from the vantage point of a third story bedroom of the house in which he resided. The youthful witness narrated to the judge that he saw the quartet “messing with the lady.” He said that Todd and Merryman kicked Mrs. Gordon. According to the witness, Todd did the actual stabbing of the victim.

Todd, in his testimony, sought to exculpate himself. It is patent that the judge did not believe Todd. On the evidence we are unwilling to state that the judge was clearly erroneous. Md. Rule 1086.

The evidence with respect to Merryman discloses that he “kicked” the victim, and then stood around, apparently watching his cohorts, Todd and Benton, continue the assault upon Mrs. Gordon, until she had been slain. Mere presence at the scene of a crime is insufficient to sustain a guilty finding, Williams v. State, 3 Md. App. 58, 237 A. 2d 822 (1968). When, however, as here, the accused’s presence at the scene of a crime is coupled with his, in some degree, aiding and abetting by direct assistance or encouragement the commission of the crime, the accused is accountable as a principal in the second degree. As such he is equally as guilty as the principal in the first degree. Williams v. State, 5 Md. App. 450, 247 A. 2d 731 (1968); Butina v. State, 4 Md. App. 312, 242 A. 2d 819 (1968); Chaviz v. State, 3 Md. App. 179, 238 A. 2d 151 (1968); Agresti v. State, 2 Md. App. 278, 234 A. 2d 284 (1967).

Merryman elected not to testify. The undisputed facts before the trial judge clearly demonstrated Merryman’s participation in the offense as a result of his having kicked Mrs. Gordon and his continued presence during the crime. Both of those factors enabled, in our view, Judge Perrott to draw a reasonable inference that Merryman was not a mere onlooker, but rather a participant in the commission of the crime. The test for sufficiency of the evidence was succinctly stated in Coward v. State, 10 Md. App. 127, 130, 268 A. 2d 508 (1970), where we said:

“The test of the sufficiency of the evidence in a case tried before the court without a jury is whether the evidence, if believed, either shows directly or supports a rational inference of the facts to be proved, from which the court could be convinced, beyond a reasonable doubt, of the defendant’s guilt of the offense charged.”

The testimony of the eyewitness was, in the case before us, in and of itself sufficient, if believed, to sustain the convictions. Metallo v. State, 10 Md. App. 76, 267 A. 2d 804 (1970); Bailey v. State, 6 Md. App. 496, 252 A. 2d 85 (1969); Reed v. State, 1 Md. App. 662, 232 A. 2d 550 (1967). We have no difficulty in concluding that the evidence presented on behalf of the State was more than enough to establish the guilt, beyond a reasonable doubt, of the two appellants.

THE AMENDMENT OF THE INDICTMENT

When the case was called to trial the State moved to amend the first count of the indictment which had charged in pertinent part that Lumpkin, Todd and Benton “on the first day of August, in the year of our Lord, nineteen hundred and seventy-three, at the city aforesaid feloniously, wilfully and of deliberately premeditated malice aforethought did murder one Pauline Gordon. . . .” The

amendment inserted between “did” and “murder” the words “kill and”. Over objection, Judge Perrott allowed the amendment on the ground that it was one of form and not of substance. We are unable to fathom how the addition of the words “kill and” was anything more than mere surplusage. In any event the addition of the two words “kill and” did not affect the validity of the indictment. We agree with the State that the appellant’s contention is frivolous and without merit. State v. Wheatley, 192 Md. 44, 63 A. 2d 644 (1949); Hawthorn v. State, 56 Md. 530 (1881); Wilkins v. State, 16 Md. App. 587, 300 A. 2d 411 (1973), aff'd, Md. 62 (1973); Watkins v. State, 4 Md. App. 47, 240 A. 2d 787 (1968).

THE MOTION TO SUPPRESS AN IN-COURT IDENTIFICATION

A motion to suppress the judicial identification was filed on behalf of Todd by his then attorney on October 16, 1973, a period approximately five and one-half months prior to the time of trial. When the case was called before Judge Perrott, the following occurred:

“(The Court) For the record, the Court at a bench conference — I’m saying this now so the defendants can clearly hear it, although I know counsel have already informed the defendants of the nature of the bench conference — The Court pointed out to counsel there were two pending Motions. One was a Motion for speedy trial and the other was to suppress the evidence. The Court offered to suspend and give counsel an opportunity to proceed with this Motion. However, they have made the suggestion that the proceedings continue, that counsel reserve all of their rights as the case may be, but to argue these Motions at the conclusion of the State’s case along with any other Motions that may be argued before the Court. Mr. Pennington, have I fairly stated what we have discussed at the bench?
(Mr. Pennington) [Defense counsel] Correct.
(The Court) I ask the State.
(Mr. Kolman) [Assistant State’s Attorney] Yes.
(The Court) It is understood and agreed by and between the State and Counsel for each of the two defendants, these Motions will be heard during the course of trial and ruled upon, and they are waiving their right to have any form of preliminary hearings on these two Motions.
(Mr. Pennington) Procedural rights.
(The Court) Yes, exactly. The Clerk will now sequester the witnesses.”

Later the following is revealed in the record:

“(The Court) Yes. I’ll deny your Motion further on Indictment 17303483 on the First and Third Counts. ... I will grant it on the Second Count for reasons I have already announced. . . .
(Mr. Kolman) Would this be the appropriate time to rule on the other Motions?
(The Court) Yes. I reserve ruling on the Motion for speedy trial. However, I have heard absolutely no evidence there was any identification that was impermissibly tainted.
(Mr. Pennington) We are not pressing that Motion at this time.”

Although Todd did offer evidence during the course of the trial to the effect that the eyewitness’s view of the crime may not have been as clear as the witness indicated, such testimony strikes at the weight of the witness’s version, not its admissibility. We have found nothing in the record that-even remotely indicates or suggests that the identification was tainted. The witness stated flatly that he had previously known the four youths who were involved in the slaying, and was readily able to identify each of them. The trial judge stated,". . . I have heard absolutely no evidence [that] there was any identification that was impermissibly tainted.” Todd’s then counsel replied, “We are not pressing that Motion at this time.” We think Judge Perrott’s remarks to be a forerunner of a ruling, never made, that the identification was not “impermissibly tainted”, and counsel’s comment to be a withdrawal of the motion to suppress.

THE MOTION FOR A SPEEDY TRIAL

Todd was apparently arrested the night of the murder, i.e., August 1, 1973, and was released on $10,000.00 bail on August 10, 1973. Indictment was handed down by the Grand Jury of Baltimore City on August 17, 1973. The motion for the speedy trial was filed on October 16, 1973. The motion reads as follows:

“MOTION FOR SPEEDY TRIAL
Mr. Clerk:
Now comes the defendant, Kenneth Todd . . . and in accordance with his/her constitutional rights respectfully requests a speedy trial in the above captioned indictment(s).”

The record discloses that it was the judge who called counsel’s attention to the motion. The judge, however, did not rule on the motion at that time, but instead reserved his ruling. No ruling was ever forthcoming.

We note that the motion filed on behalf of Todd demands a “speedy trial”, but it does not seek a dismissal of the indictment for lack of a speedy trial. We think there is a vast difference between the two types of motions. If the trial court had before it a motion to dismiss because of a denial of the right to a speedy trial, and failed to rule upon that motion, prior to the completion of the case, we would have no hesitancy under the authority of Brice v. State, 254 Md. 655, 255 A. 2d 28 (1969) and Saunders v. State, 8 Md. App.

143, 258 A. 2d 776 (1969) in reversing the judgment, because the ruling on the motion could be dispositive of the case.

We think Brice and Saunders to be inapposite to the case now before us. We so think because the granting of the motion in Brice to dismiss on the ground of double jeopardy could have led to a dismissal of the charges, and in Saunders, had the motion for a severance been granted, such severance could have produced a different end result. In the instant case the granting of the motion for a speedy trial would merely have carried the case to trial speedily, a fait accompli. Even though Judge Perrott failed to rule upon Todd’s motion for a speedy trial, trial was, nevertheless, held within nine months from the date of the arrest and six and one-half months from the date of the filing of the motion. During all but ten days of that period of time Todd was on bail, so that no serious question can arise of his inability to assist in his defense. United States v. Ewell, 383 U. S. 116, 86 S. Ct. 773, 15 L.Ed.2d 627 (1966); State v. Hunter, 16 Md. App. 306, 295 A. 2d 779 (1972). More important in this case, however, is the fact, as we have previously noted, that the motion filed on behalf of Todd was for the purpose of obtaining a speedy trial. It was not a motion to dismiss for lack of a speedy trial. Todd received what he sought, i.e., he asked for and obtained a speedy trial, notwithstanding the court’s failure to rule on the motion. Consequently, the trial judge’s failure to rule upon the motion is academic. The matter is moot. When Todd asked for and received the speedy trial, there was nothing more for the trial judge to do.

We think Todd now grasps for straws and seeks to convert, belatedly, his motion for a speedy trial into a motion to dismiss for lack of a speedy trial. We shall not allow the conversion.

Judgments affirmed.

      . But see Bowie v. State, 14 Md. App. 567, 287 A. 2d 782 (1972).

      . Merryman was indicted separately.

      . The motion was never “pressed”.

      . The motion was filed by a different attorney than the one who tried the ease for Todd. Actually, the motion appears to be a “form” in which the blanks have been completed. It was filed by an ^Assistant Public Defender who was subsequently replaced by privately retained counsel.


text:
    STATE OF MARYLAND v. SHERMAN BURTON
    [No. 923,
    September Term, 1974.]

      Decided June 4, 1975.

    The cause was argued before Gilbert, Moore and Mason, JJ.

      Donald R. Stutman, Assistant Attorney General, with whom were Francis B. Burch, A ttomey General, Milton B. Allen, State’s Attorney for Baltimore City, and Walter T. Seidel, Assistant State’s Attorney for Baltimore City, on the brief, for appellant.

      Leonard C. Redmond, III, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellee.
   Gilbert, J.,

delivered the opinion of the Court.

Sherman Burton was convicted by Judge William J. O’Donnell, at a non-jury trial, in February 1965 of burglary, and sentenced to four years imprisonment. Burton was, on July 2, 1965, referred to Patuxent Institution for an evaluation. Subsequently, on May 25, 1966, Burton was found by Judge James K. Cullen, at a non-jury proceeding, to be a defective delinquent within the meaning of Md. Ann. Code art. 31B, § 5, and Burton was committed to Patuxent. Later, in November 1969, Burton had a redetermination hearing by a jury, presided over by Judge Cullen. The jury found Burton to be a defective delinquent, and this Court denied Burton’s application for leave to appeal. In January 1974 Burton once again petitioned for a redetermination of whether he was a defective delinquent. At the conclusion of the State’s presentation of evidence, Burton moved for a directed verdict. Judge Mary Arabian granted the motion, dismissed the jury and ordered Burton released from Patuxent. The State was aggrieved and sought leave to appeal to this Court. We granted the leave, and the matter was transferred to the direct appeal docket. The case is now before us on the sole issue of whether Judge Arabian erred in granting Burton’s motion for a directed verdict.

At the trial of this matter the State introduced the testimony of Charles Brennenger, a staff psychologist of the Patuxent Institution. Mr. Brennenger testified that “the Institutional Diagnostic Staff on September 23, 1969” examined the appellee and found that he “continue[d] to satisfy the criteria of defective delinquent. ...” Subsequent to the September 1969 finding there was no similar conclusion reached by the Diagnostic Staff, although the Institutional Board of Review hearing report for the period June 21, 1973 to June 20, 1974, had stamped upon it, in red ink, “Still a defective delinquent.” There was no evidence as to who placed the stamp upon the record, or more important who authorized such stamping.

Mr. Brennenger, who had never personally examined the appellee, conceded that the appellee was suffering from schizophrenia, however, Brennenger took the position that schizophrenia is not a mental illness, but rather an emotional disturbance. Mr. Brennenger then reasoned that appellee, being emotionally unstable, fell within the meaning of Md. Ann. Code art. 31B, § 5, and was, consequently, a defective delinquent. The psychologist stated flatly that he disagreed with the American Psychiatric Association that schizophrenia is a mental illness. The witness concluded that the appellee is a defective delinquent because (1) he had seen nothing in the records that indicated appellee had changed since he first went to Patuxent, and (2) because appellee had active episodes of psychosis. Judge Arabian asked:

“But let me understand what you said, sir. You say that schizophrenia is not a mental illness?
The Witness: I do not look upon it as a mental illness.
The Court: But you have been referring to it as a psychosis?
The Witness: Yes, ma’am.
The Court: Is not a psychosis a mental illness?
The Witness: No, ma’am, not in my opinion.”

The witness went on, in answer to the judge’s questions, to agree that appellee was mentally ill within the meaning of Md. Ann. Code art. 59, § 3 (g). See also Sherrill v. State, 14 Md. App. 146, 286 A. 2d 528 (1972).

The State’s second witness, Dr. Carmacita Mola, a staff psychiatrist from Clifton T. Perkins Hospital, testified without equivocation that the appellee was schizophrenic, paranoid type, and was suffering from a mental illness within the meaning of the Maryland Code. Dr. Mola was unable to give an opinion as to whether appellee was a defective delinquent because she was unfamiliar with the definition of the term. She did say, however, that “when . . . [a person] is having a mental illness he can at times be emotionally unbalanced.”

Maryland Ann. Code art. 31B, § 5 provides:

“. . . [A] defective delinquent shall be defined as an individual who, by the demonstration of persistent aggravated anti-social or criminal behavior, evidences a propensity toward criminal activity, and who is found to have either intellectual deficiency or emotional unbalance, or both, as to clearly demonstrate an actual danger to society so as to require such confinement and treatment, when appropriate, as may make it reasonably safe for society to terminate the confinement and treatment.”

The State here argues that the evidence adduced at the hearing clearly indicates that appellee is emotionally unbalanced, hence a defective delinquent. We agree that the evidence shows that appellee may be emotionally unbalanced, but the State, in our view, proved that appellee suffered from schizophrenia, a recognized mental illness within the meaning of Md. Ann. Code art. 59, § 3 (g).

The Court of Appeals in Director v. Daniels, 243 Md. 16, 221 A. 2d 397 (1966), speaking through Judge Hammond, (later Chief Judge), quoted with approval the language used by Judge Digges, (now an Associate Judge of the Court of Appeals, but then Chief Judge of the Seventh Judicial Circuit), and Judge Ralph W. Powers, (now Chief Judge and Administrative Judge of the Seventh Judicial Circuit), when they, as hearing judges in Daniels, stated:

“The defective delinquent is not psychotic and does not suffer from any form of delusions, hallucinations, phobias, obsessions, anxiety states or depressions different in kind from the normal person and therefore psychotics are of necessity excluded from the Maryland definition of a defective delinquent.” (Emphasis supplied). Daniels, supra, Appendix A at 56.

The State asserts that the quoted language of Daniels does not apply to the present case because there is nothing in Daniels to “support the proposition that an individual once committed to Patuxent Institution who becomes psychotic or legally insane might still not fit the definition, once cured.” The State further suggests that the quote from Daniels “is just a general conclusion drawn by the Circuit Court for Prince George’s County subsequent to the trial in that case.”

It is apparent from a reading of Daniels, that the Court of Appeals did not see the hearing court’s findings in the same light as the State now views them. We observe that Judge Hammond declared for the Court at 28:

“We have read the record with meticulous care and considered it at length with full deliberation, and we are convinced that the conclusions reached by the trial court rest on a foundation of sound law properly applied to proven justifying facts. The careful and thorough opinion of Judge Digges and Powers and the Appendix A ‘Court’s Findings of Fact’ and Appendix B ‘Trial Summary’ are adopted as the expression of the reasons we agree with the trial court and are to be printed as part of the opinion herein of this Court. ...” (Emphasis supplied).

The language employed by the Court of Appeals in adopting “Appendix A” of Daniels does not give rise to a justifiable conclusion by the State that it is dicta, or in the State’s words, merely “a general conclusion drawn by the Circuit Court for Prince George’s County.” As we read what Judge Hammond has so carefully said, the Court of Appeals adopted in toto as its own “the expression of the reasons” given by Judges Digges and Powers in the trial court. Included among those reasons is the holding that psychotics are not within the ambit of the defective delinquency law.

We do not in this opinion reach the issue of whether a person who has been adjudged a defective delinquent and, later, while in confinement becomes psychotic, can after being cured of the psychosis, still be a defective delinquent. The reason that we do not reach that issue is that there was no evidence presented to the hearing court that directly dealt therewith. As we read the record, the State proved appellee to be insane within the scope of Md. Ann. Code art. 59, § 3 (g), but the record does not disclose that he was “cured”, nor that he remained a defective delinquent.

We think Judge Arabian correctly directed a verdict in favor of the appellee.

Judgment affirmed.

      . We denied the application in an unreported per curiam opinion, Burton v. Director, Application for Leave to Appeal (Defective Delinquent), No. 107, September Term, 1973, filed December 6, 1973, manifestly well after the four year term to which Burton had been originally sentenced. Patently, had not Burton been in the Patuxent Institution, he would have been released from confinement in 1969, at the latest. The inordinate delay in processing the application for leave to appeal was occasioned by Burton’s dissatisfaction with his then counsel, counsel’s inability to contact Burton, and Burton’s transfer to Clifton T. Perkins Hospital.


author: Orth, C. J.,

text:
    EARL BECKER v. CROWN CENTRAL PETROLEUM CORPORATION
    [No. 924,
    September Term, 1974.]

      Decided June 4, 1975.

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

      John W. Pfeifer, with whom was James J. Fabian on the brief, for appellant.

      Charles E. Partridge, Jr., with whom were Morton A. Sacks and Cable, McDaniel, Bowie & Bond on the brief, for appellee.
   Orth, C. J.,

delivered the opinion of the Court.

The General Assembly of Maryland at its session held in 1973 made known its concern about the distribution and sale through marketing arrangements of petroleum products in this State. It declared that the economy, the public interest, welfare and transportation were vitally affected thereby and found it necessary to define the relationships and responsibilities of the parties to certain agreements pertaining thereto. Code, Art. 23, § 167A. It did so by enacting the “Maryland Gasoline Products Marketing Act” as a subheading under the “Corporations” Article. Ch. 662, Acts 1973, codified as Art. 23, §§ 167A to 167-1. Section 3 of ch. 662 made the Act'apply “to dealer agreements and all renewals and extensions thereof entered into on or after July 1,1973.”

As enacted in 1973 the Act defined certain terms, § 167C; required certain information to be given by a distributor to a prospective dealer, § 167D; set out provisions to which marketing agreements are subject, § 167E; imposed liability on a distributor for wrongful termination of the agreement, § 167F; specified defenses to actions based on termination of the agreement, § 167G; provided for notice of intent to terminate or cancel an agreement, § 167H; and designated remedies for violations of the Act, § 167-1. It is manifest that the Legislature adopted a comprehensive scheme covering three general areas: (1) it required certain information to be given by a distributor to a prospective dealer; (2) it delineated certain provisions to which marketing agreements [were] subject; and (3) it provided sanctions for violations.

The first area enabled a prospective dealer to make an intelligent and considered decision on whether to enter into an agreement. It included such data as the gallon volume history; the names and addresses of previous dealers at the location for the past five years and the reasons their marketing agreements were terminated; any legally binding disposition of the location; the training programs the distributor will furnish and the specific goods and services it will provide. Full disclosure was required of (a) all obligations required of the dealer, (b) all restrictions on sale, transfer and termination of the agreement, and (c) the total amount of any cash deposits required, interest charges to be paid thereon and conditions for the return of the deposit. Art. 23, § 167D (1) - (7).

Section 167E delineated the “[p]rovisions to which marketing agreements [were] subject.” The section began:

“Every marketing agreement between a distributor and a dealer shall be subject to the following provisions whether or not expressly set forth therein:”

The provisions were set out in eight paragraphs. One gave a dealer a grace period within which he may cancel an executed agreement, ¶ (2). Three specified what a dealer shall not be required to do: to keep open for any specified number of hours a day or days a week unless expressly set forth in the agreement, ¶ (1); to sell products at a price fixed by the distributor, ¶ (4); to use any promotion in the operation of the business, ¶ (5). Paragraph (3) prohibited an agreement waiving the right of either the dealer or distributor to trial by jury or to interpose counterclaims or cross-claims. Paragraph (6) established certain rights and obligations in the event of any termination or cancellation of an agreement by mutual agreement or otherwise. Paragraph (7) forbade a distributor from withholding unreasonably its consent to any assignment, transfer, or sale of a marketing agreement. Paragraph (8) read:

“With respect to nonrenewal of a marketing agreement, either party must give the other party notice of his intent not to renew a marketing agreement at least 90 days prior to the expiration of the term of that marketing agreement.”

The third area dealt with sanctions. They included civil liability for damages for violation of any provision of the Act and other remedies legal or equitable as may be available to the party injured by a violation, § 167-1. A distributor who has a written marketing agreement with a dealer shall be liable to the dealer as provided in § 167-1 for the distributor’s wrongful or illegal termination or cancellation of the marketing agreement during its terms, § 167F. Defenses to an action predicated upon the termination or cancellation of an agreement are designated in § 167G, but they are available only when notice of intent to terminate or cancel is given as provided in § 167H, namely, written notice to the other party in person or by certified mail at least 60 days prior to the date which it intends to terminate or cancel the, marketing agreement, “provided, however, that where criminal misconduct, fraud, abandonment, bankruptcy or insolvency of the dealer, adulteration of product, or the giving of a dishonored nonsufficient fund check, is proven at the time of termination or cancellation, the 60-day notice shall not be required.”

On 3 July 1973 Crown Central Petroleum Corporation and Earl Becker entered into a “Lease and Dealer Agreement.” It is clear that within the contemplation of the Act, Crown was a distributor, Becker was a dealer and the agreement was a marketing agreement. Under date of 29 March 1974 Crown sent Becker a “Notice of Cancellation” which was received by him on 3 April 1974 by certified mail. The Notice read:

“You are hereby notified that pursuant to provisions thereof we are hereby cancelling the following agreements which have heretofore been entered into by you with us:
BRANDED SERVICE STATION LEASE AND DEALER AGREEMENT DATED JULY 3,1973.
THIS NOTICE SHALL BE EFFECTIVE JUNE 30,1971,.
We reserve all claims against you by reason of any breach by you of the above agreements or any of them or by reason of any indemnity agreement contained therein.”

On 5 June 1974 Becker instituted an action in the Circuit Court for Baltimore County against Crown for a declaratory judgment and interlocutory injunctive relief. On 1 July the parties filed a stipulation. They agreed in paragraph 1 thereof:

“1. Plaintiff, Earl Becker, shall temporarily remain at the service station located at 5217 Baltimore National Pike, Baltimore, Maryland 21229 under the terms of the Branded Service Station Lease and Dealer Agreement dated July 3, 1973 between the Plaintiff and Defendant until August 31, 1974 or until this case has been heard and decided on the merits, whichever shall first occur.”

This rendered moot the request for injunctive relief. Paragraphs 4 and 5 of the stipulation read:

“4. The 90-day notice of non-renewal called for under the provisions of Article 23, Sections 167E (8) of the Maryland Code was not afforded the Plaintiff.
5. Trial on the merits of this litigation will be limited to the following factual and legal issues:
(a) Whether or not the Plaintiff received legally sufficient notice of termination for cause in accordance with Article 23, Sections 167G and 167H,
(b) Whether, in fact, such cause for termination existed,
(c) Assuming no such cause existed under the Maryland Gasoline Products Marketing Act, whether such statute, if construed to in any way regulate or interfere with Defendant’s right to cancel or terminate Plaintiff’s use of Defendant’s federally registered trademark, is unconstitutional under the Supremacy Clause of the United States Constitution, in that the Lanham Act, 15 USC, Sec. 1051 et seq. may have entirely preempted the field of regulation and control of such trademarks.”

On 26 August when the case came to trial by the court without a jury, another issue was presented for determination which we designate as issue (d):

“Whether any notice was required to terminate the agreement.”

The trial was concluded the same day, and the decision held sub curia. A declaration of the court was issued on 8 November and filed on 12 November. The court determined “that the Branded Service Station Lease and Dealer Agreement dated July 3, 1973 between Crown Central Petroleum Corporation, Defendant, and Earl Becker, the Plaintiff, covering a drive-in gasoline service station, located at 5217 Baltimore National Pike, automatically terminated at the end of its term on June 30, 1974 and, therefore, the Defendant in this case is entitled to immediate possession of the premises.” On 2 December Becker directed the Clerk of the court to “file an appeal to the Court of Special Appeals in this matter.” On 6 December the court issued an order staying its direction that Crown had the immediate right to occupy the service station pending a decision on appeal. It further ordered that during the period of the stay Crown continue to deal with Becker as if the lease between them was in full force and effect. The stay was conditioned upon Becker abiding by the terms and conditions of the lease and posting a supersedeas bond in the amount of $10,000. An approved bond was filed on 17 December. On 17 December Becker noted another appeal “to the Court of Special Appeals in this matter.” This latter appeal was filed too late to apply to the judgment of 8 November. Maryland Rule 1012. If it was intended to be with respect to the order of 6 December, see Rule 1017-1021, the propriety of that order, even if subject to appeal, was not briefed. Rules 1031, § c 2, 3, 4 and 1046, § f. Therefore, we do not consider it.

The declaration of 8 November included a memorandum opinion. In the opinion the court observed that there were “certain determinations that must be made before an answer can be given as to the rights of the parties in this case.” It designated them:

“First, the affect of Article 23, Sections 167E, 167G and 167H of the Annotated Code of Maryland. Second, whether or not these provisions of the Annotated Code of Maryland above referred to are unconstitutional as under the combined effect of the Supremacy Clause of the United States Constitution, Article 4 Clause 2, and the Lanham Act 15 U.S.C. Section 1051 et seq. Third, whether or not cause existed giving the Defendant the right to cancel the lease agreement from the Plaintiff. Fourth, whether or not there was any necessity for any type of notice to be given by the Defendant to the Plaintiff in order to terminate the aforesaid lease agreement.”

The court found as a fact that there was no intent on the part of Crown to terminate the agreement for cause, and that, in any event, sufficient cause to terminate for cause did not exist. It determined that “there is no conflict” between the Maryland Gasoline Products Marketing Act and the Lanham Act. It held, however, that a marketing agreement without a renewal clause was not subject to the 90-day notice of intent not to renew required by Art. 23, § 167E (8). It concluded that as there was no renewal provision within the term's of the marketing agreement here, “it was not even necessary that any notice be sent to [Becker] that the lease would cease at the end of the term of the marketing agreement.” It was therefore that the court determined that the marketing agreement automatically terminated at the end of its stated term on 30 June 1974 and that Crown was entitled to immediate possession of the premises.

Becker poses only one question on appeal. Basically it is whether the trial court erred in holding that the agreement automatically terminated at the end of its term. The question encompasses whether the agreement was without the scope of the notice requirement of the Maryland Gasoline Products Marketing Act.

Crown accepts this question, but urges that it raises another issue in the event the agreement be found subject to the statutory notice requirement, namely, was the notice here given sufficient under § 167E (8). It then presents two other questions. It asks (a) whether § 167E (8) can be enforced in the light of the Lanham Act and (b) whether the notice here given was sufficient to permit a “for cause” termination of the agreement under § 167G (3) and (4) and § 167H.

The Maryland Gasoline Products Marketing Act and the Lanham Act

The “Lanham Act” is codified as Chapter 22, headed “Trade Marks”, of Title 15 of the United States Code, §§ 1051-1127. The Congress of the United States expressly and clearly set out the intent of the Chapter in § 1127:

“The intent of this chapter is to regulate commerce within the control of Congress by making actionable the deceptive and misleading use of marks in such commerce; to protect registered marks used in such commerce from interference by State, or territorial legislation; to protect persons engaged in such commerce against unfair competition; to prevent fraud and deception in such commerce by the use of reproductions, copies, counterfeits, or colorable imitations of registered marks; and to provide rights and remedies stipulated by treaties and conventions respecting trademarks, trade names, and unfair competition entered into between the United States and foreign nations.”

The Maryland Gasoline Products Marketing Act, according to its title was fundamentally related to the sale and distribution of gasoline products, providing for the regulation of marketing agreements between gasoline distributors and gasoline dealers, giving dealers a course of action against distributors under certain circumstances and affording distributors certain defenses. The General Assembly found it necessary, as we have pointed out, to define the relationship and responsibilities of distributors and dealers as to agreements between them because the distribution and sale of petroleum products through such agreements were of public interest and vitally affected the welfare, transportation and economy of the State. Although a marketing agreement within the meaning of the Act included one under which the dealer was granted “the right to use a trademark, trade name, service mark, or other identifying symbol or name owned by the distributor”, Code, Art. 23, § 167C (3), the legislation focused primarily on the right of a dealer to occupy premises owned, leased or controlled by the distributor, for the purpose of engaging in the retail sale of gasoline products supplied by the distributor.

In Florida Lime and Avocado Growers, Inc., 373 U. S. 132, 142, the Supreme Court of the United States said:

“[F]ederal regulation of a field of commerce should not be deemed preemptive of state regulatory powers in the absence of persuasive reasons — either that the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakably so ordained.”

In Pennsylvania v. Nelson, 350 U. S. 497, 501-505, the Court stated that three of the most widely accepted tests for supersession were (1) the scheme of federal regulation was so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it; (2) the federal statutes touch a field in which federal interest is so dominant that the federal system must be assumed to preclude enforcement of state laws on the same subject; (3) enforcement of state legislation presents a serious danger of conflict with the administration of the federal program. See Melville v. State, 10 Md. App. 118, 122-123.

Applying these tests we do not deem the Lanham Act to be preemptive of Maryland’s power to regulate marketing agreements between distributors and dealers of gasoline products. We do not see in the federal statute that Congress has unmistakably ordained that it has preempted such state power. The federal scheme of regulation as to trademarks was not so pervasive as to make reasonable the inference that Congress left no room for the states to supplement it to the extent Maryland did in the Gasoline Products Marketing Act, nor will the enforcement of the Maryland Act present a serious danger of conflict with the administration of the federal program. The mere presence of federal legislation in a particular area does not, in and of itself, create a preemption of all state legislation in that area. States are permitted to act in the interstices of the federal regulatory matrix, even where extensive federal regulatory schemes have been enacted, if there is no express Congressional language of preemption, and may require more stringent standards than those designed by Congress, and may otherwise adopt laws affecting the subject of a federal statute, so long as the federal purpose is not undermined. Mariniello v. Shell Oil Company, 511 F. 2d 853 (3rd Cir. 1975), citing Kewanee Oil Co. v. Bicron Corp., 416 U. S. 470 (1974); Goldstein v. California, 412 U. S. 546 (1973); Rice v. Sante Fe Elevator Corp., 331 U. S. 218 (1947).

The Construction of Code, Art. 23, § 167E (8)

The agreement consisted of a printed form obviously prepared by Crown, it contained blanks to be filled in to make it applicable to a particular dealer. Paragraph 3 of the form read:

“TERM: This agreement shall be for an initial probationary term of__commencing on -and an additional probationary term of-thereafter, subject to the right of either Crown or Dealer to cancel this Agreement at any time by giving--days written notice during the initial probationary term or by giving--days written notice during the additional probationary term.
Unless so terminated, this Agreement shall continue for an additional term of___
Each of the respective terms of this Agreement are subject to earlier termination under the provisions of Paragraphs 21, 22 and 23.”

This paragraph was changed in the agreement executed by Becker and Crown to read as follows:

“TERM: This agreement shall be for a term of One (1) Year commencing on July 1, 1973. Each of the respective terms of this Agreement are subject to earlier termination under the provisions of Paragraphs 21, 22 and 23.”

Everything else that appeared in Paragraph 3 of the printed form had been x’ed out and the deletions initialed by the parties. Thus, under the express terms of the agreement, it ran at the longest for one year from 1 July 1973, with no provision for renewal or for continuance for any additional term. It was subject to earlier termination as expressly provided in the specified Paragraphs. Unless earlier terminated by means spelled out by it, it terminated 30 June 1974, and there was no way a party by unilateral action could extend it. Therefore, Becker’s question is to be decided by determining what rights and obligations, if any, with respect to renewal were impressed on this agreement by the provisions of the Act as were in effect when the agreement was executed.

The cardinal rule in statutory construction is to effectuate the real and actual intention of the Legislature. Wilson v. State, 21 Md. App. 557, 567. This may be determined from the language of the statute, for it is generally true that the Legislature intended to mean what it plainly expresses, Slagle v. State, 243 Md. 435. When the exact reach or breadth of a statute lies in doubt, it is construed as a whole, considering all parts together in the light of its legislative history. See Karns v. Liquid Carbonic Corporation, 275 Md. 1. That is, statutes are to be construed reasonably with reference to the purpose sought to be accomplished and in accordance with declared legislative policy. State v. Wagner, 15 Md. App. 413, 421, and cases therein cited.

Fortunately, we are here afforded access to the legislative history of ch. 662, Acts 1973. Senate Bill No. 820, the “Franchise Practices Act”, and No. 821, the “Gasoline Dealers Day in Court Act”, were introduced in the Senate on 6 March 1972, read for the first time and referred to the Committee on Judicial Proceedings. They were referred to the Legislative Council of Maryland for study. See Legislative Council Working Agenda for 1972 in which SB 820, designated as Item No. 139, referred to the Council by the Senate Judicial Proceedings Committee, and SB 821, designated as Item No. 215, referred by the House Committee on Economic Matters were both referred by the Council to the House Committee on Economic Matters. Under date of 25 October 1972 the Chairman of the House Economic Affairs Committee made a report to the Legislative Council:

“The House Economic Affairs Committee has voted favorably on a Gasoline Dealers Franchise Bill after many extensive hearings and drafts of proposed bills this summer. The Gasoline Dealers bill is a result of the weaknesses the Committee found in Item 139 (S.B. 820 — Franchises) and Item 215 (S.B. 821 — Gasoline Dealers Day in Court Act).
The bill does not address itself to the problem of non-renewal of leases, but does correct many abuses. Full disclosure of all relevant information pertaining to the operation of a service station is required of the franchisor to the franchisee, before a lease is signed. Dealer rights as to hours open for business, the price at which he sells products, participation in company advertising promotions, and re-sale of his company inventory to the company upon termination of the marketing agreement are specified.”

The minutes of the Fourth Meeting of the Council held on 25 October 1972 reflect that the report and recommendations were adopted by the Council. See page 373, Report of proposed bills made by the Legislative Council of Maryland to the General Assembly of Maryland of 1973. The bill recommended by the Council was in substance Senate Bill 220, ultimately enacted as the Maryland Gasoline Products Marketing Act, ch. 662, Acts 1973.

It is apparent that SB 820 and SB 821 were strongly opposed by distributors with emphasis on the question of renewal of agreements. The bill which received the favorable vote of the House Economic Affairs Committee acting as a committee of the Legislative Council, and which the Council recommended, is set out in pages 141-146 of the Council’s Report to the 1973 General Assembly. It is preceded by an explanation which is substantially the same as the Committee report. It states specifically that the bill “does not address itself to the problem of non-renewal of leases”, adding “but it does correct many abuses”, listing them as contained in the Committee report. Nonrenewal of an agreement is not one of the abuses specified.

In the light of this legislative history and in view of the content of the bill itself, we find it clear that the Legislature intended that the Act not deal with renewal of agreements except in the very limited sense of notice of nonrenewal. The only reference in § 1 of ch. 662, codified as Art. 23, §§ 167A to 167-1, to renewal of a marketing agreement was in § 167E (8), and then in negative terms, requiring in language we have set out supra, 90 days notice prior to the expiration of the terms of that marketing agreement by either party of intent not to renew. The only other place in the chapter to which renewals and extensions of such agreements were referred was in § 3 of the chapter, not codified, under which the provisions of the Act applied to agreements “and all renewals and extensions thereof, entered into on or after July 1,1973.”

What the 1973 Act did, therefore, was to read into every marketing agreement executed on or after 1 July 1973 the notice requirement provided by § 167E (8). Either party to the agreement was required to give the other party notice of his intent not to renew at least 90 days prior to the expiration of the term of that agreement. Failure to do so was a violation of the legislative fiat. The remedy for such violation was that spelled out in § 167-1. The person failing to give the required notice was civilly liable for damages caused thereby and was subject to other remedies legal or equitable available to the party injured. What the 1973 Act did not do was to require renewal of an agreement. Although there were sanctions for the wrongful termination of an agreement, there were none for a refusal to renew which did not breach the terms of the agreement itself. In short, the Act, as the Legislative Council explained, did not address itself to the problem of nonrenewal.

Our view is supported by what the General Assembly did the following year. It amended the Act, and the amendments, except for one housekeeping matter, ch. 374, Acts 1974, concerned renewal of agreements. The substantive amendments were by way of ch. 852, Acts 1974, effective 1 July 1974. It included oral agreements in the definitions of distributor and marketing agreements, § 167C (1) and (3). In § 167E, dealing with provisions to which marketing agreements were subject, it added to paragraph (6) thereof these provisions:

“. . . and if the distributor terminates or cancels the agreement, except where there is a material breach by the dealer of the terms of the contractual agreement between the distributor and the dealer or if the distributor unreasonably refuses to renew an agreement without the written assent of the dealer, the distributor shall pay to the dealer, within 30 days after the effective date of the termination or cancellation or unreasonable refusal to renew, the full value of any business goodwill enjoyed by the dealer at the time the dealer is notified of the cancellation or termination or refusal to renew;”

To paragraph (7) which provided that “no distributor shall unreasonably withhold its consent to any assignment, transfer, or sale of a marketing agreement” it added the language “or unreasonably refuse to renew a marketing agreement.” As enacted in 1973, § 167F read:

“A distributor who has a written marketing agreement with a dealer shall be liable to the dealer as provided in § 167-1 for the distributor’s wrongful or illegal termination or cancellation of the marketing agreement during its term.”

The 1974 amendment added “In addition to any other liability herein provided, including that specified in subsection 167E (7),” at the beginning of the section and added “or the distributor’s unreasonable refusal to renew the marketing agreement” at the end of thereof. Section 167J was added: “The Gasoline Products Marketing Act shall constitute a statement of the public policy of this State.” The title to ch. 852 included among its purposes “prohibiting the unreasonable refusal by distributors to renew a marketing agreement.” Thus the Legislature included in 1974 what it had purposely excluded in 1973, substantiating the belief, if any substantiation was necessary, that the 1973 Act was not concerned with renewal of the agreements.

The judge below was of the opinion that a marketing agreement which did not contain a renewal clause was not subject to § 167E (8) of the Act. He said:

“If the Legislature intended to stop a company from having a marketing agreement with a dealer that automatically terminated at the end of a specific time, it is up to the Legislature to so state. It would appear that the problem presented to the Legislature was one where the marketing agreement contained a renewal clause and that the Legislature was trying to make sure that under a renewal clause the minimum time necessary for notice was 90 days.
To further interfere with a contractual right to have a marketing agreement that does not renew itself at all but terminates at the end of the term would not in itself be against public policy unless so declared by the Legislature. The Legislature has not seen fit at this time to enter into this field as Subsection 8 of Article 167E only deals with the nonrenewal of a marketing agreement which, in this Court’s opinion, must be interpreted to mean a marketing agreement that has within its provisions the renewal terms. If there was no renewal agreement within the terms of this marketing agreement, it was not even necessary that any notice be sent to the Plaintiff that the lease would cease at the end of the term of the marketing agreement.”

As we have indicated, we see it differently. We find it clear that the legislative intent in the 1973 Act, although not concerned with the problem of refusal to renew an agreement, did, in precise terms without equivocation or ambiguity, provide that every marketing agreement executed after 1 July 1973 shall be subject to the giving of notice by one party to the other, at least 90 days prior to the termination of that agreement, of his intent not to renew the agreement, whether or not such clause was expressly set forth therein. Thus the agreement between Crown and Becker, executed on 3 July 1973, was subject to the notice demanded by § 167E (8).

Crown and Becker stipulated, see supra, that notice was not given as required by § 167E (8). Our inquiry now turns to the effect of the failure to give timely notice.

It is manifest that if an agreement contains a clause providing for an additional term for a stated period, the renewal clause contained in the agreement would become effective in the absence of notice pursuant to § 167E (8). But the agreement here did not contain a clause renewing the agreement or continuing it for a stated period. By its terms it terminated on 30 June 1974. Although Becker was entitled to be notified by Crown that the relationship between them was at an end as of that date, he was not entitled under the 1973 Act to have the agreement renewed or continued. His redress under that Act was set out in § 167-1 for violation of a provision of the Act:

“Any person who violates any provision of this subheading shall be civilly liable for damages caused as a result of the violation, or be subject to other remedies legal or equitable as may be available to the party injured by the violation. Any person suffering damages as the result of the wrongful or illegal termination or cancellation of a marketing agreement or as the result or any other violation of the provisions of this subheading may bring an action under this section against the other party in the circuit courts of the several counties or the Supreme Bench of Baltimore City or where the offending party resides or has his principal place of business.”

The agreement was not wrongfully or illegally terminated or cancelled during its term (it terminated at the time agreed upon by the parties as set out in the agreement) and so Becker was not entitled to any remedy designated therefore by § 167F. He is, however, entitled to such damages, if any, he can prove in a civil action for the failure to notify him of the intent on the part of Crown not to renew the agreement. In the light of the intent of the legislature as we have found it, we do not believe that he is entitled to the equitable relief of a renewal of the agreement. Whether he would be so entitled in a comparable factual posture under the Act as amended in 1974 is not before us, and we expressly do not reach that question. *

Other Issues

Crown argues that even if § 167E (8) were applicable, “the 90 day notice called for thereunder was fully furnished as of July 4 or 5, 1974 at which time the marketing agreement terminated by its own terms.” The statute required that the notice be given at least 90 days prior to the expiration of the term of that marketing agreement, and it was agreed that this was not done.

Crown makes an additional alternative argument. It claims that the notice it gave was sufficient to terminate the agreement for cause under Art. 23, § 167G (3) and (4) and § 167H. It urges that any finding of the court below to the contrary was clearly erroneous. Section 167G concerns defenses to an action based on termination of a marketing agreement. Section 167H provides that neither party may raise any defense set out in § 167G “unless it shall give written notice to the other party in person or by certified mail of its intent to terminate or cancel at least 60 days prior to the date on which it intends to terminate or cancel the marketing agreement. . .” with the proviso we have set out supra. We observe that the action here reviewed was not brought under the provisions of the Act that the agreement was terminated or cancelled and the sections dealing with defenses which may be raised to such actions are not appropriate. As we have indicated, however, the agreement here expressly provides for termination prior to the end of its term. Its ¶ 21 sets out in 18 subparagraphs circumstances under which Crown could “immediately terminate this Agreement without further demand” upon written notice which “shall not be less than is required by applicable State law, if any.” Paragraph 22 reads:

“Where termination is not otherwise specifically provided for in this Agreement and Dealer defaults by reason of a failure to perform or a violation of any provision, covenant or condition of this Agreement and fails to cure the default within such reasonable period of time as may be specified by Crown for correction or thereafter repeats the same violation, Crown may immediately terminate this Agreement without further demand, upon giving Dealer such written notice of termination as may be required by the applicable State law.”

The trial court said in its opinion:

“Extensive testimony was given by both sides in this case — that on behalf of the Defendant alleging that there was cause to terminate the lease agreement, and that on the part of the Plaintiff alleging that there was not cause to terminate the lease agreement. Without going deeply into detail, it is this Court’s opinion and ruling in this matter that: (1) Sufficient cause did not exist for the termination of this lease for cause; and (2) that there was no intent at any time on the part of the Defendant to terminate for cause.
A reading of the lease and the entire background of this case leaves this. Court with but one conclusion and that is that the Defendant was disgusted with some of the conduct of the Plaintiff and in fact made efforts to correct certain problems existing in the handling of the station by the Plaintiff, but when Defendant finally, decided to terminate the lease it was done entirely with the idea of giving the Plaintiff a ninety (90) day cancellation notice to terminate the lease at the end of its term. Nothing in the Notice of Cancellation made any mention of what cause was being used to terminate the lease, nor under the provisions of Article 23 Section 167 was there any indication that there was an intent to terminate for cause.”

We have reviewed the evidence adduced. Giving due regard, as we are directed by Rule 1086, to the opportunity of the lower court to judge the credibility of the witnesses, and bearing in mind that the weight of the evidence is for the trier of fact, we find evidence sufficient in law to support the determinations of the trial court that there was neither an intent shown on the part of Crown to terminate the agreement for cause nor was there sufficient reason established for it to so terminate the agreement even had it so intended. Therefore, the judgment of the trial court that “sufficient cause did not exist for the termination of this lease for cause” stands as not clearly erroneous. Id.

Becker filed a motion that we not receive or hear oral argument on the questions Crown presented in its brief going to the point of cancellation for cause and the constitutionality of Art. 23, § 167E (8). He claims that these matters could only be raised on cross-appeal and because Crown did not cross-appeal they are not properly before us. The challenged matters were tried and decided below and presented by Crown as alternative arguments. The motion is denied.

Judgment modified; rights of the parties declared to be as expressed in this opinion; costs to be paid, by appellee.

      . Art. 23, § 167B provided: “This subheading may be cited as the ‘Maryland Gasoline Products Marketing Act’.”

      . Section 167C of the Act provided:
      “(1) ‘Distributor’ means any person engaged in the sale, consignment, or distribution of gasoline products through retail outlets which it owns or leases, and who maintains a written contractual relationship with a dealer for the sale of the products, and shall include any subsidiary or affiliated corporation in which it holds at least thirty percent voting control;
      (2) ‘Dealer’ means any person engaged in the retail sale of gasoline products under a marketing agreement entered into with a distributor, other than a person who is an employee of a distributor;
      (3) ‘Marketing agreement’ means a written agreement between a distributor and a dealer under which the dealer is granted the right to use a trademark, trade name, service mark, or other identifying symbol or name owned by the distributor, and a written agreement between a distributor and a dealer by which the dealer is granted the right to occupy premises owned, leased or controlled by the distributor, for the purpose of engaging in the retail sale of gasoline products supplied by the distributor;
      (4) ‘Engaged in the retail sale of gasoline products’ means that at least thirty per centum of the dealer’s gross revenue is derived from the retail sale of gasoline products;
      (5) ‘Retail’ means the sale of a product for purposes other than resale.”

      . “The declaration may be affirmative or negative in form and effect and has the force and effect of a final judgment or decree.” Courts Art. § 3-411.

      . This order was apparently upon petition filed by Becker. It indicates that a copy was served on the attorney for Crown on 27 November but it was not filed in the proceeding until 17 December.

      . The three major Senate Committees and the six major House Committees, of which the Committee on Economic Matters was one, were continued during the interim period of the Legislature as Legislative Council Committees.

      . SB 820 made it a violation for a franchisor to terminate, cancel or fail to renew a franchise without good cause. SB 821 imposed liability on a distributor for failure to renew a franchise.

      . It seems that the reference to § 167E (7) was intended to be to § 167E (6). Paragraph (7) imposes no liability.

      . The 1974 amendments bring the Act more in line with comparable statutes in a great majority of other jurisdictions. Several states, like Maryland, have passed laws regulating the relationships between manufacturers, franchisors and distributors on one hand and franchisees and dealers on the other. See, e.g. Conn. Gen. Stat. Rev. §§ 42-133e to 42-133h (1975); Del. Code. Ann. tit. 6, §§ 2251-2256 (1975); Mass. Gen. Laws Ann. ch. 93B, §§ 1-14 (1972); Minn. Stat. § 168.27 (1974); Neb. Rev. Stat. §§ 53-166.01 to 53-166.17 (1974); Neb. Rev. Stat. §§ 60-1420 to 60-1435 (1974); N. J. Rev. Stat. §§ 56:10-1 to 56:10-12 (Supp. 1975); N. Y. Gen. Bus. Law §§ 195-199 (McKinney Supp. 1974); Ohio Rev. Code Ann. §§ 1333.73 - 1333.74 (Supp. 1973); Okla. Stat. Ann. tit. 47, §§ 561-575 (Supp. 1974); P. R. Laws Ann. tit. 10, §§ 278a - 278d (Supp. 1974); S. C. Code Ann. §§ 46-150.151 to 46-150.163 (Supp. 1974); S. D. Compiled Laws Ann. §§ 37-5-1 to 37-5-9 (Supp. 1974); Tex. Rev. Civ. Stat. art. 4413(36) (Supp. 1974); Va. Code Ann. § 4-80.2 (Supp. 1974); Va. Code Ann. §§ 59.1-21.8 to 59.1-21.18 (Supp. 1974); Wash. Rev. Code §§ 19.100.010 to 19.100.940 (1974). The statutes of Connecticut, Delaware, New Jersey, Ohio, Puerto Rico and Washington apply to franchise relationships in general. The statutes of Massachusetts, Minnesota, Nebraska (§§ 53-166.01 to 53-166.17), New York, Oklahoma, South Carolina, South Dakota and Texas pertain to automotive dealerships. Nebraska (§ § 60-1420 to 60-1435) and Virginia (§ 4-80.2) regulate beer and liquor distributorships. Another Virginia law (§§ 59.1 - 21.8 to 59.1 - 21.18), entitled the “Virginia Petroleum Products Franchise Act”, applies to the relationships between “dealers” and “distributors” of gasoline products and, in many instances, contains exactly the same language as the Maryland Law. The great majority of these statutes deal directly with the problem of failure to renew (or continue) the agreement between the distributor and dealer. (Virginia [§ 4-80.2] and South Dakota only forbid cancellation and not refusal to renew). Several make it unlawful for the distributor to refuse to renew the agreement without just cause (just provocation; good cause; due cause, etc.). See, e.g. Massachusetts. Others forbid non-renewal without just cause. See, e.g. Connecticut (“No franchisor shall ... fail to renew a franchise, except for good cause....”). While several of these statutes allow for possible revocation of the distributor’s license for unjust failure to renew, most provide a remedy by way of a suit for damages and/or injunctive relief. Only Delaware, however, explicitly spells out that the equity court may issue “a mandatory order for renewal of the franchise.” A few also require notification of intent not to renew within 60 days of the expiration of the contract. The New Jersey law, which provided the model for S.B. 820, is violated by failure to renew without having first given 60 days written notice of non-renewal. Only Maryland (prior to 1 July 1974) and Virginia fail to face directly the problem of non-renewal. Under the Virginia statute (§§ 59.1-21.8 to 59.1-21.18) no distributor may fail to renew a franchise without 60 days written notice in advance of failure to renew. Virginia, like Maryland, allows a civil suit for damages and “other remedies legal or equitable ... as may be available to the party damaged by such violation.” Virginia, however, provides for liquidated damages of $500 and makes explicit provision for “injunctive relief’. By passing the 1974 amendment, the Legislature put Maryland among those states that provide remedies both for untimely notice and “unreasonable refusal to renew”. The remedy in either case would be accorded under § 167-1.
      These statutes and others regulating franchises have received increasing law review treatment. See, e.g., Chisum, State Regulation of Franchising: The Washington Experience, 48 Wash. L. Rev. 291 (1973); Comment, Franchise Regulation: An Appraisal of Recent State Legislation, 13 B. C. Ind. & Com.L.Rev. 529 (1972); Note, Constitutional Obstacles to State “Good Cause” Restrictions on Franchise Termination, 74 Colum. L. Rev. 1487 (1974); Note, Franchise Terminations and Refusals to Renew: The Lanham Act and Preemption of State Regulation, 60 Iowa L. Rev. 122 (1974); Note, A Sui Generis Approach to Franchise Terminations, 50 Notre Dame Law 545 (1975); Comment, Mariniello v. Shell Oil Co., 6 Rutgers Camden L. J. 155 (1974); Note, Court Restricts Right of Franchisor to Terminate Franchise — A Prelude to the Franchise Practices Act?, 4 Seton Hall L. Rev. 683 (1973); Note, A Tempest in a Chicken Bucket: Some Reflections on Franchise Regulation in California, 17 U.C.L.A.L.Rev. 1101 (1970); 45 Miss. L. J. 252 (1974); 27 Rutgers L. Rev. 518 (1974). Several of these works question the constitutional validity of statutes which proscribe non-renewal without just cause. We are not faced here with any question of the constitutionality of the renewal provisions.
      As of 1 July 1975, the Gasoline Products Marketing Act will appear as §§ 11-301 to 11-308 of the new Commercial Law Article with stylistic changes. Present § 167E (7) will read as follows: “The distributor may not unreasonably withhold his consent to any assignment, transfer, sale, or renewal of a marketing agreement.”

      . Present § 167E (8) will become § 11-304 (F) of the new Commercial Law Article with only stylistic changes. We note that the new wording of § 11-304 (F), entitled “Notice of intent not to renew”, confirms our interpretation of the applicability of § 167E (8) to all marketing agreements: “A party who intends not to renew a marketing agreement shall give notice of his intent to the party at least 90 days before the expiration of the term of the marketing agreement.” The phrase “With respect to nonrenewal of a marketing agreement”, which the lower court apparently read as restricting the application of § 167E (8) to agreements with a renewal clause, does not appear in the stylistic revision.

      . The manner of giving this notice was not specified by the statute. The general rule is that when a statute requires the giving of notice, but does not expressly direct the manner it is to be given, the person to be informed must receive actual notice before it will be effective. 58 Am. Jur. 2d Notice § 27 (1971), citing among other cases, Johnson Service Co. v. Climate Central Const. Inc., 478 S.W.2d 643, 645 (Texas 1972). See Com. De Astral v. Boston Met. Co., 205 Md. 237, 253. Compare Art. 23, § 167H which provides that where the notice there required is given by certified mail, “the notice shall be effective on the date of mailing.”
      Patently the parties here applied the general rule. The notice given Becker by Crown was sent by certified mail more than 90 days prior to the expiration term of the agreement but received by Becker less than 90 days prior to the expiration term of the agreement.

      . Art. 23, § 167G reads:
      “It shall be a defense to any action brought under the provisions of this subheading that the marketing agreement was terminated or cancelled because:
      (1) Of a mutual agreement between the parties;
      (2) Of the bankruptcy or insolvency of the dealer;

        (3) The dealer failed to comply with the express requirements of his agreement with the distributor; and
      (4) The dealer failed to act in good faith in carrying out the terms of his agreement with the distributor.”

      . Paragraph 23 gives Crown relief by way of automatic termination for the dealer’s inability to perform, as. for example, by the dealer’s death, incapacity by reason of illness or disability or being called into active military service.