author:
Fisher, J.,

      Moylmi, J.,

text:
    JAMES THOMAS PORTER v. STATE OF MARYLAND
    [No. 1649,
    September Term, 1979.]

      Decided November 7, 1980.

    The cause was argued before Moylan and Wilner, JJ., and Irving H. Fisher, Associate Judge of the District Court of Maryland for District 5, specially assigned.

      Douglas R. Taylor for appellant.

      Stephen Rosenbaum, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Warren B. Duckett, Jr., State’s Attorney for Anne Arundel County, and Marianne Stepler, Assistant State’s Attorney for Anne Arundel County, on the brief, for appellee.
   Fisher, J.,

delivered the opinion of the Court. Moylan, J., filed a concurring opinion at page 105 infra.

John Robert Culb was shot and killed in the late evening hours of November 1,1978, during the course of a robbery of the Myersville Gulf station in Myersville, Maryland, where he was employed. Appellant, James Thomas Porter, was convicted of the first degree felony murder of Mr. Culb, robbery with a deadly weapon and two counts of the use of a handgun in the commission of a felony. He was sentenced to life imprisonment, and fifty years, to be served consecutively.

On appeal, Mr. Porter’s major contention involves the application of M.D.R. 723 a, which requires that an arrested person be presented "without unnecessary delay” before a judicial officer.

Relying on the authority of Johnson v. State, 282 Md. 314, 384 A.2d 709 (1978), appellant contends that statements obtained in interrogations by the police after his arrest and during a period of detention should have been suppressed as being the product of an unnecessary delay in presenting him before a District Court commissioner. However, at the conclusion of the hearing on the Motion to Suppress, Judge Childs found, in his denial of the motion, that ". . . the Johnson Doctrine is strictly for cases which approach the outer limits of twenty-four hours and . . . that, under the circumstances of this case wherein it was a Court holiday and the Court was not in session ... that Rule 723 a was not violated and the statements will not be excluded ...”

The trail that led to Mr. Porter’s arrest and his conviction, although circuitous, can be briefly set forth. On November 4, 1978, appellant made a telephone call to the Culb home, identifying himself and informing Mrs. Culb, the widow of the victim, and her brother-in-law, that he was in possession of Mr. Culb’s wallet. He was told to contact the Maryland State Police. Mrs. Culb’s brother-in-law did inform the Maryland State Police, but it appears Mr. Porter did not. Instead Mr. Porter contacted Montgomery County Police Officer Plant, for whom Mr. Porter had served as a police informant. Mr. Porter met with Officer Plant on November 6,1978, at which time he gave Officer Plant the wallet and an "explanation” of how it came to be in his possession. Plant met with Porter again the next day, and, unknown to Porter, had photographs taken of him. On November 9, 1978, one or more of those photographs was included in a photographic array presented to Mr. Aaron Hane, an attendant at the Myersville Exxon station. Hane identified Mr. Porter, from the array, as the person who had visited his station and bought a quart of oil from him in the late evening hours of November 1st, and who Hane observed walking toward the Myersville Gulf station after leaving his Exxon station. Later that day, the State Police presented this accumulated evidence to District Court Commissioner Barber, and obtained from him warrants to arrest Mr. Porter and search his home and automobile.

Porter was arrested at approximately 8:00 a.m. the next morning, November 10, 1978, at his home in Silver Spring by a team of officers, both uniformed and plain-clothed. He was handcuffed, informed of the charges against him, and removed to a waiting police cruiser. Both a Waiver of Prompt Presentment form and a Constitutional Rights form (.Miranda warnings) were read to him. Neither form was signed because of the handcuffs. Except for a brief stop to adjust Mr. Porter’s handcuffs, he was driven directly to the Frederick State Police Barracks, arriving there at approximately 9:00 a.m. Mr. Porter was placed in a holding cell. He was neither processed nor presented to a commissioner, notwithstanding the fact that Commissioner Barber, who was also advised that the warrants would be executed on November 10th, called the Frederick Barracks shortly after Mr. Porter’s arrival inquiring if anyone needed to be presented. Trooper Herring advised that Porter was in custody. Commissioner Barber informed the officer he would be available at his home for the next 30 to 45 minutes. When a subsequent call was made to Commissioner Barber’s home, approximately 45 to 60 minutes later, he had already gone. No other attempt was made to contact a commissioner, although the record discloses that three or four were available in the Frederick area.

At approximately 10:15 a.m., Mr. Porter had his first interrogation session with the officers. He signed a Waiver of Rights form, but he refused to sign a Waiver of Prompt Presentment form. The interrogation lasted until approximately noon. The substance of Mr. Porter’s first statement concerned how he received the wallet, his phone calls to the Culb home and to Officer Plant.

Officer Plant conducted the second interrogation, which began at approximately 2:00 p.m., after a waiver of Miranda rights form was read to and signed by Mr. Porter. This session lasted approximately one hour. Although Mr. Porter continued to deny direct involvement with the murder and robbery of Mr. Culb, he gave Officer Plant a different version of how he obtained the wallet and admitted being in the Myersville area at the time of the incident. He also told Officer Plant that the gun, the subject of a previously unsuccessful search, was located in his basement bedroom.

At approximately 3:30 p.m. it was determined that a commissioner would soon be available at the Frederick District Courthouse. Mr. Porter had his initial appearance at approximately 4:30' p.m. Following his appearance before the commissioner, Mr. Porter was transported back to the barracks. At approximately 6:00 p.m., after hie signed a waiver of Miranda rights form, he gave a third statement which was video-taped. This session lasted approximately one hour.

Appellant argues that the three statements, two before and one following his initial appearance, should have been suppressed, the first two because of a violation of M.D.R. 723 a, the third because it was tainted by the primary illegal detention.

In Johnson v. State, supra, the Court of Appeals made crystal clear that the requirements of M.D.R. 723 a were mandatory, embodying a "sine qua non in any scheme of civil liberties”, supra, at 321, and that "any statement, voluntary or otherwise, obtained from an arrestee during a period of unnecessary delay in producing him before a judicial officer, thereby violating M.D.R. 723 a, is subject to exclusion when offered into evidence against the defendant as part of the prosecution’s case-in-chief.” Supra, at 328-29. If the delay exceeds the outer limits prescribed by the Rule (at the time, 24 hours or the first session of court), the statement is "automatically excludible. . . irrespective of the reason for the delay.” Id. Where, as here, the delay is within those outer limits, "it is incumbent upon the trial court to determine whether the State has met its burden of showing that the delay was necessary under the circumstances of the particular case.” Id.

We are concerned here with one narrow issue: Did the State sustain its burden of proving that the eight and one-half hour delay in this case was a necessary one? If it did not, the statements were inadmissible.

In this regard, and as a preliminary comment, it is evident that the court erred in its conclusion that "the Johnson Doctrine is strictly for cases which approach the outer limits of twenty-four hours. . . That is not at all what the Court of Appeals said, or implied, or intended.

Not every delay, of course, will suffice to render intervening statements inadmissible, only those that are "unnecessary.” In Johnson, the Court gave as examples of "necessary” delay those required:

. . . 1) to carry out reasonable routine administrative procedures such as recording, fingerprinting and photographing; 2) to determine whether a charging document should be issued accusing the arrestee of a crime; 3) to verify the commission of the crimes specified in the charging document; 4) to obtain information likely to be a significant aid in adverting harm to persons or loss to property of substantial value; 5) to obtain relevant nontestimonial information likely to be significant in discovering the identity or location of other persons who may have been associated with the arrestee in the commission of the offense for which he was apprehended, or in preventing the loss, alteration or destruction of evidence relating to such crime. Supra, at 329.

It would be specious to suggest that the delay in this case was for any of those reasons, or for a reason similar to them. Porter was not "processed” or held pending the imminent reception of other material evidence. Knowing that November 10 was a holiday, and that Commissioner Barber would only be available until about 10:00 a.m., the police held Porter in his cell seemingly to circumvent the Rule and create an opportunity to interrogate the prisoner in clear derogation of its requirements.

The trooper testified as follows:

Q. Now, prior to your discussion with him at 10:15, what if any effort did you make when you arrived at the Frederick Barracks to take Mr. Porter before a commissioner for a hearing?
A. This particular date was a Court Holiday, 10th of Novembér, and I knew that a Commissioner should be at the Courthouse at approximately 9:00 a.m. I asked TFC Herring to make a phone call and to locate a commissioner. He later reported to me he was unable to contact the Commissioner, later being in approximately 15 or 20 minutes. . .
Q. You testified that you received a call from Commissioner Barber that morning?
A. Yes sir.
Q. Was Commissioner Barber returning a call of yours or was he just calling the MD. State Police Barracks?
A. He was just calling the Barracks.
Q. Does he normally do that as a routine matter?
A. Yes, all of them do that as a routine matter, and the purpose for that is to find out if you have anybody there that needs to be presented to a Commissioner.
Q. And did you tell Commissioner Barber that you did in fact have Mr. Porter in custody?
A. Y es (It should be noted here that Commissioner Barber signed the arrest and search warrants and was fully apprised that the warrants would probably be executed on November 10th) . . .
Q. When you arrested Mr. Porter on November 10th at 8:00 . . . was it your intention then to interrogate him about the crime?
A. My normal procedure after I arrest somebody is to talk to them, yes sir. . .
Q. How long has the Maryland State Police used the waiver of prompt presentment form?
A. It hadn’t been too awfully long, probably within 2 months of that time that the form came into being.
Q. Were there any instructions given to the Maryland State Police Officers as to when this form is to be used and under what circumstances?
A. Yes sir.
Q. Could you tell me briefly what that instruction is?
A. Basically when the subject is placed under arrest, he’s in custody it should be read to the subject prior to any questioning if you don’t take him to the Commissioner immediately.
Q. Well, aren’t you supposed to take him to the Commissioner immediately?
A. I don’t really understand what you’re asking .. .
Q. Why was it that Mr. Porter was not processed immediately when you returned him to the Frederick Barrack?
A. I saw no need to process him right at that time.
Q. You mean you didn’t photograph or fingerprint him or in any way get ready to have him presented to the commissioner or to have bond set, did you?
A. I don’t have to in a situation such as this. I knew that he would not be getting out on bond and I was in no particular rush as far as preparing him . . .

We view the above as flagrant disregard for the rights of an accused while under the coercive conditions of custodial interrogation. It is the clearest example of the very type of police misconduct intended to be deterred by M.D.R. 723. That November 10 was a holiday, under the circumstances of this case, is an absolute irrelevancy. A commissioner was available, and there was no justification whatsoever for not presenting appellant before him.

Accordingly, we find that any statements by the defendant in the instant case prior to the presentment should have been ruled inadmissible against him as part of the prosecution’s case-in-chief.

To determine whether statements made after presentment were admissible, the Court must make an independent evaluation of all the circumstances surrounding the statement including, but not limited to, the time, place and manner of its taking, intervening events, its content compared to prior statements given, and any other factors that will lead to a determination of whether the post-presentment statement was a product of free will and deliberate reflection and therefore free from the taint of the preceding illegal detention. Johnson, supra, at 330, Meyer v. State, 43 Md. App. 427, 438 (1979). The burden for this proof rests on the State. Kennedy v. State, 44 Md. App. 662, 665-67 (1980).

There really can be little doubt as to the taint in this case. After giving two severely incriminating statements concerning his possession of the victim’s wallet and the location in his home of the murder weapon, the third statement, taken three hours later can hardly be considered as free from the taint of the illegal detention that preceded it. It was inadmissible.

For the guidance of the trial court upon remand, we shall also address, and note our agreement with, appellant’s contention that the gun, located in appellant’s home as the result of his unlawfully obtained statements, was also inadmissible. It is not necessary to consider appellant’s final complaint, which has to do with the sentence he received.

Judgments reversed; case remanded for new trial.

Costs to be paid by Anne Arundel County.

Moylmi, J.,

concurring:

Reluctantly, I concur. I wish that I were in a position to dissent, hut I am precluded by Maryland Rule 1085 because what for me is the weak link in the appellant’s argument was not challenged by the State below or, indeed, even on this appeal. I cannot quarrel with the logic of the majority opinion; it follows dutifully from Johnson v. State, 282 Md. 314, 384 A.2d 709. Nor do I take this occasion to quarrel with Johnson v. State itself (although I believe that the dissenting opinions of Chief Judge Murphy and of Judge Orth, each joined in by the other and both joined in by Judge Smith, represent far sounder reasoning and far more realistic policy). My quarrel is with Maryland District Rule 723 a itself. It for me is a nullity as being an ultra vires exercise of a limited rule-making function. If appropriately challenged, I think any trial judge in the State should promptly declare it null and void as beyond the power of the rule-making authority.

To me, the transcendant issue, shorn of legal embellishment and reduced to its lowest common denominator, is simple:

A killer stupidly confessed to a murder and now wishes that he had kept his mouth shut. So what? Should we be distressed or should we be glad?

The confession in issue was not involuntary. It did not offend the Fifth Amendment privilege against self-incrimination. It did not offend the even more stringent implementing rules of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602,16 L. Ed. 2d 694. It would have passed muster even during the heyday of the Warren court. It was constitutional under both the United States Bill of Rights and Article 22 of the Maryland Declaration of Rights, always held to be in pari materia with the Federal Fifth Amendment privilege.

What then is the basis for throwing out highly probative, competent, relevant and material evidence that could play a pivotal role in bringing a killer to book and in protecting society from his possible future depredations? It is on the basis of a rule promulgated under a grant of authority permitting the passage of rules ostensibly to regulate the orderly flow of business within a court house. My question could not be more basic. In our form of government, whoever gave the rule makers the supposed power to make such rules? For me, what has been done is not rule making but law making. Upon that distinction hinges everything.

The rule-making authority here in issue ultimately flows from Article IV, Section 18 (a) of the Maryland Constitution:

"The Court of Appeals from time to time shall make rules and regulations to revise the practice and procedure in and the administration of the appellate courts and in the other courts of this State, which shall have the force of law until rescinded, changed or modified by the Court of Appeals or otherwise by law.”

The question is what is rule making and what are its limits? Even the constitutional grant of rule-making authority recognizes the tentative nature of such authority and sets forth explicitly the power of the Legislature to supersede or override such rules at any time. The interpreting cases recognize that rule making is legislative in nature, Ginnavan v. Silverstone, 246 Md. 500, 505, 229 A.2d 124; Hill v. State, 218 Md. 120, 127, 145 A.2d 445, and that sometimes courts are authorized to perform functions which are not essentially judicial, Boyer v. Thurston, 247 Md. 279, 293-296, 231 A.2d 50.

Indeed, in Kohr v. State, 40 Md. App. 92, 388 A.2d 1242, Judge Liss for this Court recognized that the rules are not "sacred cows” but are subject to probing examination to see if they fall within the legitimate parameters of rule making. In that case, he held that Maryland Rule 736 passed muster but, in doing so, pointed out the fundamental purpose of rule making and one of the limitations upon it, saying at 40 Md. App. 96:

"The basis for the grant of this rule-making power is the recognition that in order to provide for the orderly administration of justice reasonable and specific rules of procedure are necessary. The rule-making power, like all legislative power, must be exercised within the confines of the United States Constitution and our own Constitution.”

Even more fundamental limitations upon the rule-making function are at stake here. When do rule makers exceed their limited grant of power? When does mere rule making, sometimes legitimately delegated to the executive and judicial branches of government, pass imperceptibly into law making and become thereby an unconstitutional usurpation of the legislative prerogative? The very foundation upon which our system of government is erected is the scrupulous and jealously guarded separation of powers. The starting point for any consideration of the limits of the rule-making authority is Article 8 of the Maryland Declaration of Rights:

"That the Legislative, Executive and Judicial powers of Government ought to be forever separate and distinct from each other; and no person exercising the functions of one of said Departments shall assume or discharge the duties of any other.”

It is not infrequent that the Legislature (or in this case Article IV, Section 18 (a) of the Constitution itself) sensibly declines to inundate itself with the minutiae of infinitely detailed and ever-changing departmental and bureaucratic regulations, and thus delegates to the appropriate agency the limited grant of power to promulgate such regulations for the orderly doing of business before that agency. This is all that the grant of authority under Article IV, Section 18 (a) historically was ever contemplated to represent. Indeed, Section 1-201 of the Courts and Judicial Proceedings Article, implementing the constitutional grant, makes its nature crystal clear as it catalogues the concerns that fall within its compass.

"Without intending to limit the comprehensive application of the term 'practice and procedure’, the term includes the forms of process; writs; pleadings; motions; parties; depositions; discovery; trials; judgments; new trials; provisional and final remedies; appeals; unification of practice and procedure in actions at law and suits in equity, so as to secure one form of civil action and procedure for both; and regulation of the form and method of taking and the admissibility of evidence in all cases, including criminal cases.”

The power to control the paper flow of litigation, to decide what pleadings shall be filed in what places, at what times, and in how many copies, does not remotely contain within it, and constitutionally cannot contain within it, the broad power to supervise the operation of the criminal justice system. It is the executive branch that is responsible for the behavior of its agents. It is for the legislative branch, representing directly the voice of the people and accountable to the people, to make the fundamental policy judgments as to what, at the sub-constitutional level, our law enforcement system should be all about.

Constitutional protections, to be sure, override both executive prerogative and legislative prerogative, but we are talking here about matters at the distinctly sub-constitutional level. At that sub-constitutional level, it is not the business of the judicial branch to make or to suggest policy, but only to implement and interpret the policy as made by others. At the sub-constitutional level, it is not for the judicial branch to supervise or to dictate the behavior of the executive arm. At the sub-constitutional level, it is not for the judicial branch to create for defendants rights or liberties which it believes desirable. At the sub-constitutional level, that delicate balancing between efficient law enforcement, on the one hand, and extra-constitutional protections, on the other hand, is quintessentially legislative in nature.

In this regard, it is the legislative branch that has the benefit of hearing from all constituent groups. It is the legislative branch that is best equipped to study the impact of a. proposed change. Of even more overriding concern, it is the legislative branch that expresses the popular will.

The Constitution itself, to be sure, is a curb on the popular will. Indirectly, therefore, power rests in the judicial branch to curb the popular will just so long as the judges are interpreting the Constitution. Without that jurisdictional basis for action, however, the judges are required simply to serve that popular will, as expressed through the legislative branch. Why have bar associations, editorial writers, legislators and concerned citizens been so unalert to usurpation on the part of one branch of government of the sovereign prerogative of a coordinate branch of government? It is, I submit, because we have grown so used to deferring to the judicial branch at the level of interpreting the Constitution, where such deference is appropriate, that we have been lulled by habit into deferring to the judicial branch even at the sub-constitutional level, where such deference is dangerously inappropriate.

In our system of checks and balances, the judicial branch, by its very nature, is and is supposed to be the anti-democratic branch. It is the appropriate "brake” upon the process; it is a very inappropriate innovator of the process.

To presume to tell the police department how to do its business, to presume to create (even from the noblest of motives) extra-constitutional rights in a criminal defendant, is to engage in substantive law making in the guise of rule making. The issue here is not whether Maryland District Rule 723 a is a good law or a bad law. That is a mere surface concern. The far more fundamental issue is that of who, in a democratic society, shall pass such a law, good or bad.

A benevolent oligarchy can be as anti-democratic as a power hungry executive and even more insidious because of low visibility. If eternal vigilance is the price of liberty, the legislative branch of government might be well advised to keep a weather eye to both its flanks.

Whatever the merits of this particular case, there is involved here a far deeper, far more profound issue that desperately cries out for public attention, public concern and public debate — What are the limits of the rule-making function? A haunting refrain from the musical "1776” echoes still:

"Is anybody there? Does anybody care?” Only time will tell.

      . The full text of M.D.R. 723 a states:
      A defendant who is detained pursuant to an arrest shall be taken before a judicial officer without unnecessary delay and in no event later than the earlier of (1) 24 hours after arrest or (2) the first session of court after the defendant’s arrest upon a warrant or, where an arrest has been made without a warrant, the first session of court after the charging document is filed. A charging document shall be filed promptly after arrest if not already filed.
      Effective July 1, 1979 M.D.R. 723 a has been amended to read:
      A defendant who is detained pursuant to an arrest shall be taken before a judicial officer without unnecessary delay and in no event later than 24 hours after arrest. A charging document shall be filed promptly after arrest if not already filed.
      All references to M.D.R. 723 a in this opinion are to the former version of the rule.

      . There were several conflicts between the police officers and the appellant in the testimony presented at the pretrial suppression hearing. Mr. Porter testified that he was not informed of the charges against him until he reached the Frederick Barracks; that he was offered a deal for his cooperation; that his statement was videotaped before he was presented before a commissioner; and that he believed this to be a "sham” arrest similar to one he participated in as a police informant with Officer Plant. The court obviously did not credit that testimony.

      . Miranda v. Arizona, 384 U.S. 436 (1966).

      . This form had been in use since approximately two months after it came into being, with instructions to the police to read it to detainees in the same manner as the Miranda warnings.


source: Caselaw Access Project

author: Figinski, J.,

license: Public Domain

text:
    ELIZABETH C. LOH v. SAFEWAY STORES, INC. et al.
    [No. 1668,
    September Term, 1979.]

      Decided November 7, 1980.

      The cause was argued before Moylan, J., and Richard M. Pollitt, Associate Judge of the First Judicial Circuit and M. Albert Figinski, Associate Judge of the Eighth Judicial Circuit, specially assigned.

      Stuart C. Law, with whom were Law, Murphey & McKee on the brief, for appellant.

      John H. Bolgiano, with whom were Smith, Somerville & Case on the brief, for appellee Safeway Stores, Inc.
   Figinski, J.,

delivered the opinion of the Court.

This is an appeal from a judgment entered, upon motion pursuant to Rule 610, by the Circuit Court for Anne Arundel County. Summary judgment was granted, after a hearing, upon the lower court’s determination that appellant’s claim had been satisfied under the principle in Scheffenacker v. Hoopes, 113 Md. 111 (1910). On appeal, appellant argues that this venerable precedent has been misapplied, and that summary judgment was granted improperly. Alternatively, appellant argues that the court below failed to take proper account of the Uniform Contribution Among Tortfeasors Act, Article 50, §§ 16-24, Md. Code.

Elizabeth C. Loh, appellant, on March 31,1977, purchased a five ounce package of "12 Beef Franks N’ Blankets” from a Safeway store on Ritchie Highway in Arnold, Maryland. The franks were produced by Garden State Kosher Provisions (hereinafter called Garden State) and sold to Safeway through Durkee Foods. Appellant went home and heated, for eating, her purchase. Instead of a choice morsel of delight, she "felt a sharp pain in one of her teeth” resulting from a "bone or similar foreign substance” contained in one of the "Franks N’ Blankets.” Her tooth was broken. She retained counsel to seek compensation for her injury.

Counsel for appellant was in contact with the insurance carrier for Garden State. On November 21,1977, the insurer sent to appellant’s counsel a check in the amount of $1,000 which the accompanying letter said was "intended to be in full payment of Mrs. Loh’s claim.” The letter acknowledged that there was no mutually agreed upon settlement figure, but the insurer stated "we want your client to have what we believe would be the full value of her claim.” The insurer did not admit liability, but, rather, sought an "amicable conclusion” to Mrs. Loh’s claim. The insurer’s letter concluded with the comment that the check "represents the maximum value to us for settlement of this claim.”

Appellant’s counsel deposited the $1,000 check and distributed its proceeds to appellant. On December 2, 1977, appellant’s counsel wrote to the insurer’s agent acknowledging receipt and deposit of the check. However, the letter stated that "we must advise you that we do not consider the $1,000 payment to be in full settlement of Mrs. Loh’s claim.” Further, the letter recited the previous settlement negotiations. Appellant’s counsel concluded the letter by reiterating that the deposit of the $1,000 "does not constitute settlement or satisfaction of Mrs. Loh’s claim, nor does it bar us from commencing suit in this matter.” Gratuitously, appellant’s counsel acknowledged that the $1,000 would be applied to whatever final judgment would be rendered in the case.

Two weeks later, on December 13, 1977, appellant filed suit in the Circuit Court for Anne Arundel County. The declaration bore the denomination "implied warranty” and was brought solely against Safeway. Appellant alleged breach of warranty and recited, particularly, Sections 2-314 and 2-315, Commercial Article, Md. Code. The ad damnum clause was for $50,000.

Safeway filed a general issue plea and, subsequently, a third party claim against Garden State. The third party claim was stated in two counts. In the first count, Safeway, as third party plaintiff, demanded "that it be indemnified from any liability or damages which may be assessed in favor of [Mrs. Loh] as against [Safeway] .. . [because] the product manufactured by [Garden State] was impliedly fit for consumption and free from any foreign matter or defect.” The second count alleged that "as a result of the negligence” of Garden State "in the manufacture of said food product,” the plaintiff was injured without any contributory negligence of Safeway.

On April 13,1978, Garden State filed a plea which, among other things, alleged that "before the issuing of the summons, [it had] tendered to the plaintiff a sum of money in satisfaction of the plaintiffs demand.” This reference, of course, was to the $1,000 check forwarded on November 21, 1977.

On January 13, 1979, in response to a request from Safeway, Garden State admitted that "it supplied the frankfurters which were sold to Safeway stores by Durkee” and that "it supplied the meat portion for the Durkee Beef N’ Blankets.” Garden State did not admit, however, that "there was any alleged foreign substance in the meat” supplied.

After trial was twice continued, a motion for summary judgment was filed by Garden State on July 2, 1979, and, thereafter, on August 3, 1979, by Safeway. Garden State’s motion argued that the acceptance of the $1,000 check sent on November 21, 1977, "constitutes a full accord and satisfaction to any debt which the Plaintiff would be entitled to receive from [Garden State].” Safeway’s Motion also sought to take advantage of the appellant’s acceptance of the November 21, 1977 check. Safeway argued that it "constituted a full accord and satisfaction of any claim which [appellant] claims as a result of the .breach of warranty.” Further, Safeway contended:

"[Appellant] having accepted the check in full accord and satisfaction of the dispute of her claim arising out of the allegedly unfit food product which was initially manufactured by [Garden State] necessarily results in a release of all alleged debtors or tort feasors in that it is a fundamental proposition of law that [appellant] is entitled to but one satisfaction of her claim and cannot after collecting money in settlement of a claim against one person allegedly responsible then, with impunity, proceed by Court action against another without even divulging the fact that [appellant] had received and put to her own use money received from the joint tort feasor or joint debtor.”

After a hearing, the learned judge below granted both motions. On the<record, the court below stated that appellant had not rejected the November 21,1977 check, but deposited it and that act "constituted the acceptance, irrespective of what [appellant] may have said.” The court below believed appellant’s claim had been extinguished and that it was immaterial whether "the defendants [i.e., Safeway and Garden State] have a right of contribution or indemnity between them.” The lower court relied wholly upon Scheffenacker v. Hoopes, 113 Md. 111 (1910) and its reasoning from it.

In Scheffenacker, a printer sent a bill for $722.40 for printing certain catalogues. The consumer sent back a check for $361.20 with a letter stating that "you know my dissatisfaction with your work” and that the poor printing job had caused "great damage and injury.” The consumer, further, stated, among other things, that, rather than "require [the printer] to make my loss good,” he did "not wish a controversy” and, consequently tendered half payment "in full settlement.” The printer acknowledged the letter and check, made excuses for the job, and recited that "I am positive that you do not intend to beat me out of the balance of my bill.” The printer got the check certified. At trial and on appeal, it was held that the printer used the check and was barred, through accord and satisfaction, from recovering the remainder of the bill. The Court of Appeals, per Judge Urner, wrote, 113 Md. at 117:

"The plaintiffs expression of dissatisfaction with the defendant’s proposal could not qualify the effect of his actual use of the check and appropriation of the defendant’s money through its certification, in view of the terms of compromise under which alone it could be used. It was the use of the check that determined the question of the acceptance of the offer and not the verbal dissent by which it was accompanied.”

Chief Judge Bond, in Hodgson v. Phippin, 159 Md. 97, 99-100 (1930) explained the holding in Scheffenacker, thusly:

"The ordinary understanding of a tender of a portion of an amount claimed in full satisfaction of the whole seems to be that it constitutes a conditional offer, that acceptance of the money involves acceptance of the condition, and results in an accord and satisfaction of the whole claim, discharging the unpaid portion. Hunt, Tender, sec. 240. And this court has held that acceptance of such a tender has that result even though the claimant protests that he does not accept the terms attached, but takes the money only in part payment. Scheffenaker v. Hoopes, 113 Md. 111, 117.”

Compare 6 Corbin, Contracts, 1962, § 1279, p. 127. See also, Stockton v. Frey, 4 Gill 406, 424 (1846); Mercantile T. & D. Co. v. Rode, 137 Md. 362, 377 (1921); Eno Cotton Mills v. Mudge, 139 Md. 302 (1921).

In light of the authorities cited, we believe it is clear that, in Maryland, when one party tenders a check in settlement of a dispute, making clear that the tender will satisfy the claim against the tendering party if accepted, the party who accepts and uses the check, even though protesting against settlement, cannot make further claim against the tendering party. Here, Garden State’s letter made clear that the $1,000 check tendered on November 21, 1977 was "the maximum value to us for settlement of this claim.” Appellant accepted the settlement by depositing the check, regardless of appellant’s counsel’s protestations to the contrary. As between appellant and Garden State, there was an accord and satisfaction. In addition, strict application of the rule that there may be only one satisfaction for a single injury, see Cox v. Maryland Elec. Rwys. Co., 126 Md. 300 (1915); Berkley v. Wilson, 87 Md. 219 (1898), would bar further recovery from any party for the injury to appellant’s tooth here.

Appellant, however, seeks to avoid judgments in favor of Garden State and Safeway by reliance upon the Uniform Contribution Among Tortfeasors Act, Article 50, Sections 16-24, Md. Code. Prior to enactment of this legislation, a release of one joint tort-feasor, or satisfaction therefrom, extinguished a person’s right to proceed against all others. As the Court of Appeals wrote in Gunther v. Lee, 45 Md. 60, 67 (1876):

"All the cases, both English and American, maintain the doctrine that satisfaction from one joint tort-feasor, whether received before or after recovery, extinguishes the right as against the others. The plaintiff is not entitled to receive more than one satisfaction for and in respect of the same injury. As was said by the Court in Lovejoy vs. Murray, when the plaintiff has accepted satisfaction in full for the injury done him, from whatever source it may come, he is so far affected in equity and good conscience, that the law will not permit him to recover again for the same damages. * * * Here the release expresses the consideration on its face, which was received in full satisfaction of the wrong complained of. The proviso in the release, by which the right to recover for the same injury against the other two defendants was attempted to be reserved to the plaintiffs, is simply void, as being repugnant to the legal effect and operation of the release itself.”

This rule was severely criticized by academic writers. See e.g., Prosser, Joint Torts and Several Liability, 25 Cal. L. Rev. 413, 421-5 (1937);* ** Wigmore, Release to One Joint-Tortfeasor, 17 111. L.R. 563 (1923). And, exceptions to the general rule were, at times, engrafted into the law. See, e.g., Murphy v. Penniman, 105 Md. 453, 473 (1907); McShane v. Howard Bank, 73 Md. 135, 153-4 (1890). The legislature first created a limited substantive right of contribution among joint tortfeasors in 1927, and, in 1941, enacted the Uniform Act. The Act applies only to joint tort-feasors. It established a right to contribution, expunged the common law rule of release, and preserved rights of indemnification.

Appellant seeks to apply the Uniform Act to overturn the judgments in favor of Garden State and Safeway. Her refuge in the Act poses substantial issues of both a definitional and conceptual nature. To get benefit of the Act, appellant must fit the parties here into the definitions of "joint tortfeasor” and "injured person” found in the Act. Even if that hurdle is overcome, appellant must bring the accord and satisfaction which occurred by the use of Garden State’s check within the concept of "release” under the Act in modification of the common law.

Under the Act, joint tortfeasors are defined as "two or more persons jointly or severally liable in tort for the same injury to person ...” [emphasis added], Art. 50, § 16 (a), Md. Code. Further, the Act defines an "injured person” as "any person having a claim in tort. ” [Emphasis added], Art. 50, § 16 (b), Md. Code. The common law rule of release is abrogated, by Art. 50, § 19, Md. Code, when a "release by the injured person [is] of one joint tort-feasor.” The statutory provision from which appellant seeks succor, when read with the definitions applicable to the Act, appears limited, on its face, to "tort” actions. In the case on appeal, appellant’s declaration was premised upon implied warranty and we must consider whether such a suit is a "tort” action susceptible of coverage by the Act.

Suit on implied warranty has been called "a freak hybrid born of the illicit intercourse of tort and contract.” The parties have cited no Maryland case and our own research has disclosed none which has considered whether suit on an implied warranty is a tort action within the purview of the Act. In Trieschman v. Eaton, 224 Md. 111 (1961), the Court of Appeals made footnote reference to the issue büt did not find it necessary to decide the question. Our research has disclosed, however, the opinion of Judge Miller in Uppgren v. Executive Aviation Services, Inc., 326 F. Supp. 709 (D. Md. 1971), where the United States District Court for the District of Maryland considered whether, for choice of law purposes, a suit based on breach of implied warranty would be considered a tort or contract action by the Maryland courts. There, the parties urged the court to apply "contract-conflict rules” which Judge Miller found to be error, after extensive consideration of "the nature and historical background of an action for personal ... injury based upon breach of warranty.” 326 F. Supp. at 714. Judge Miller thoroughly reviewed the writings of the leading authorities, primarily Dean Prosser, and found that "the Maryland Court of Appeals has quoted the views of Prosser with approval relative to the origin of the action for breach of implied warranty and its close kinship to tort.” 326 F. Supp. at 715. Finally, Judge Miller concluded, 326 F. Supp. at 716:

"Earlier Maryland cases discussing the requirement of privity in an implied or express warranty action indicate that privity is necessary, not because the cause of action is bottomed in contract, but because a direct contractual relationship was deemed to be required to create the warranty and the concomitant duty, the breach of which constituted a tort. State to Use of Bond v. Consolidated Gas, Electric Light and Power Company, 146 Md. 390, 396, 126 A. 105 (1924). * * * It is believed by this court that the highest court of Maryland, if faced with the necessity to decide the question, would determine that an action based upon an implied warranty (arising from a contract or sale made prior, of course, to the July 1, 1969 effective date of the amendment to Article 95B, § 2-318, Anno. Code of Md.) bears such a close relationship to one based upon tort that it should be subject to the rule of lex loci delicti for the same reasons as is a tort action.”

Subsequent Maryland decisions holding that the law of the place of the sale governs the extent and effect of the warranties which attend the sale do not undercut the analysis made by Judge Miller. The essential fact remains that "warranty is a matter of toit as well as contract.” Prosser, The Assault Upon the Citadel (Strict Liability to the Consumer), 69 Yale L.J. 1099, 1127 (1960).

Although the Maryland cases continue to discuss products liability in terms of "causes of action sounding in tort... land] claims based upon breach of warranty”, Frericks v. General Motors Corp., 274 Md. 288, 300 (1975), it is clear that, "regardless of theory, a plaintiff must satisfy three product litigation basics from an evidentiary standpoint: (1) the existence of a defect, (2) the attribution of the defect to a 'seller’, and (3) a causal relation between the defect and injury.” Digges, Product Liability in Maryland Revisited, 7 U. of Blt. L.R. 1, 14 (1977). It must be recognized, therefore, that the warranty action, albeit a "freak hybrid,” differs little in fact in products cases from "causes of action sounding in tort.”

For the purposes of the Uniform Contribution Among Tortfeasors Act, we conclude that appellant’s suit for breach of implied warranty can be a 'claim in tort’ which allows appellant to claim the role of an injured person under the Act. A determination that appellant had a 'claim in tort’ under the Act does not end our inquiry. Safeway and Garden State must fall into the classification only of joint tortfeasors and they may be so classified if they are 'liable in tort” [emphasis added] to the appellant.

Summary judgment below, predicated upon Scheffenacker v. Hoopes, 113 Md. 111 (1910), precluded any judicial determination of liability of Safeway and Garden State in this case. In addition, it must be recognized that the correspondence accompanying the November 21,1977 check contained a denial of Garden State’s liability and, although it admitted to supplying the meat portion of the "frank” alleged to have broken appellant’s tooth, Garden State did "not admit there was any alleged foreign substance in the meat portion.”

In this context, we review Swigert v. Welk, 213 Md. 613 (1957), a case relied upon heavily by appellant. Swigert came to the Court of Appeals after the grant of summary judgment in favor of a third party defendant, Welk, who had been impleaded in a case involving a two-car collision in Baltimore City. There, the plaintiff, not a party to the appeal, had executed a release to Welk in consideration of a $3,500 payment. The release, however, denied that Welk was a tortfeasor. When impleaded by Swigert, Welk claimed that the release was a complete bar to the cause of action and the trial court, accepting the argument, granted summary judgment. In reversing, the Court of Appeals decided two points relevant to this case on appeal. First, the Court of Appeals addressed the effect the Uniform Contribution Among Tortfeasors Act had on the common law and, second, the Court directed its attention to the definitions of "joint tortfeasors” and "injured person.” The Court wrote, 213 Md. at 619:

"At common law, a release by the injured party of one of several joint tortfeasors released all. The Uniform Act, of course, changed this. But this Court has held both before and since the passage of the Uniform Act that if several persons be involved in an accident and one of those persons, who has been guilty of no negligence, obtains for himself alone a release from the injured party, it does not affect the liability of the others.
The act does not specify the test of liability. Clearly, something short of an actual judgment will suffice; we think it equally clear that a denial of liability will not.”

Welk had denied liability in the release obtained from plaintiff. Because Swigert claimed that Welk’s negligence contributed to plaintiffs injuries, the Court held that Swigert was entitled to have Welk’s motion for summary judgment denied regardless of Welk’s freedom from further recovery against him. Only with the third party claim in the case, could Swigert have Welk’s liability determined so that Swigert could reduce his liability under the contribution aspects of the Act.

The reasoning and holding in Swigert seem peculiarly relevant to the appeal from summary judgment in favor of Garden State in this case. Further, the Swigert opinion’s reasoning on the effect of the Act on the common law would appear to point to reversal of the summary judgment in favor of Safeway. Swigert, therefore, gives the appearance of the terminal point of this opinion. There are, however, two critical distinctions between what the Court of Appeals had before it in Swigert and what we face in this appeal. First, in Swigert, there was a release with a denial of liability; here, application of the venerable rule of Scheffenacker v. Hoopes, 113 Md. 111 (1910), required a finding of an accord and satisfaction between appellant and Garden State. Second, in Swigert the third party claim sought contribution; here Safeway sought indemnification from Garden State. These distinctions between what we have here and what was before the Court of Appeals in Swigert cause our discussion to proceed further.

The distinction between the effect of a release denying liability and the effect of an accord and satisfaction was one theme of the arguments presented below by Safeway and Garden State. On appeal, Safeway relied upon the accord and satisfaction and, citing Lanasa v. Beggs, 159 Md. 311 (1930), argued that appellant "surely is not entitled to attempt a second collection from the retailers.”

In Lanasa, plaintiff, after accepting a $1,032.40 settlement from Yellow Cab, brought proceedings, seeking $25,000 as damages, against a truck driver who had collided with the cab in which he was a passenger. The Court of Appeals reversed the overruling of a demurrer filed on behalf of the truck driver, writing, 159 Md. at 319:

". . . if as a matter of fact the wronged party has actually received satisfaction, or what in law is regarded as its equivalent, from one tort-feasor, he is barred from proceedings against the other tort-feasors.”

Lanasa, however, was decided a decade before the enactment in 1941 of the Uniform Contribution Among Tortfeasors Act. Although it was cited in Maryland Lumber Co. v. White, 205 Md. 180, 199-200 (1954), an order of satisfaction entered by one party involved in "conversion by misdelivery” was said there to have no more effect than reducing the "claim against the other tortfeasor ... by the amount of the consideration paid for the order of satisfaction.” In addition, in dictum, the Court of Appeals in Trieschman v. Eaton, 224 Md. 111, 116-118 (1961) called Lanasa an "earlier” case standing for the common law rule of release of tortfeasors and said that "the Maryland Legislature did away with the rule as to joint tortfeasors by the passage of the [Uniform] Act.” Lanasa, however, was cited with approval in Grantham v. Prince George’s County, 251 Md. 28, 39 (1968) and Bell v. Allstate Insur. Co., 265 Md. 727, 730 (1972).

In Grantham, plaintiff had sued two doctors and the Board of County Commissioners of Prince George’s County for malpractice alleging negligence, breach of warranty and breach of contract. Judgments totalling $60,000 were obtained against one doctor and the Board, but a motion for new trial was granted. Thereafter, settlement negotiations were commenced between the plaintiffs attorney and the attorney representing the doctor. A figure of $31,802.98 was agreed upon and the docket was noted, according to a "line” or order of dismissal filed by the doctor’s attorney which read: "As to [the doctor] only, please enter this matter as dismissed, with prejudice, and the judgment paid and satisfied.” Thereafter, the Board filed a motion for summary judgment on the ground that the satisfaction of the judgment against the doctor resulted in a release of the Board. The motion was granted and a plaintiffs motion to vacate was denied. On appeal, the Court of Appeals, per Judge Singley, affirmed the orders. The Court wrote that "Our law is well settled that the satisfaction of a judgment entered against one or more joint tortfeasors releases all of them.” 251 Md. at 37. Judge Singley’s opinion, however, went on to state:

"It should be emphasized that we are here dealing with a judgment which has been satisfíed: not, as was the case in Treischman, supra, with a partially satisfied or unsatisfied judgment [citation omitted]; nor with the effect of a release given under the [Uniform Contribution Among Joint Tortfeasors] Act, [citation omitted] (Compare, however, Maryland Lumber Co. v. White, 205 Md. 180 ..., which held that the entry of an order of satisfaction prior to judgment was the equivalent of a release under the [Uniform Contribution Among Joint Tortfeasors] Act . . .), but with the entry of a judgment which the parties agree has been satisfíed in full. [Citations omitted.] 251 Md. at 38-9. [Emphasis added]

Finally, in Grantham, the Court concluded that "the Act did not alter the well-established common law rule: further action is barred when a judgment against one tortfeasor is satisfied.” 251 Md. at 40.

Judge Singley’s care in distinguishing Maryland Lumber Co. v. White, supra, and his conclusion that the decision made an order of satisfaction prior to judgment the equivalent of a release under the Act. would appear to undermine the vitality of Lanasa when a release under the Act or its equivalent is before the Court. In such a case, Maryland Lumber Co. v. White, supra, would seem to apply. The relevance of this analysis to our case would appear to be clear: is the accord and satisfaction here to be equated with an order of satisfaction before judgment and, hence, be a release of only the one tortfeasor who obtained the accord or does the Lanasa rule that there can be but one satisfaction apply to limit the injured person to the satisfaction arising from the accord just as if there had been a satisfaction of a judgment.

After Grantham, another decision, Bell v. Allstate Insur. Co., 265 Md. 727 (1972), cites Lanasa, and it relates, in part, to an order of satisfaction situation. In Bell, the Court refused to "turn its back” on Grantham and quoted at length from Lanasa. In Bell, however, the order of satisfaction at issue was entered upon consent judgments. There was no order of satisfaction prior to judgment as occurred in Maryland Lumber Co. v. White, supra.

We conclude that, under Judge Singley’s analysis in Grantham of Maryland Lumber Co. v. White, supra, an order of satisfaction prior to judgment is the equivalent of a release under the Uniform Contribution Among Tortfeasors Act. We conclude, further, that the Act abrogated the common law rule that a release of one joint tortfeasor released all, Trieschman v. Eaton, 224 Md. 111, 118 (1961); Swigert v. Welk, 213 Md. 613, 619 (1957). Continued reliance on Lanasa, is limited to instances where judgments have been satisfied. In the case on appeal we do not have a satisfied judgment; rather, we are confronted with an accord and satisfaction between appellant and Garden State. Logic would seem to dictate that such a satisfaction, arising in law from the acceptance of the tender submitted by Garden State, should be equated with a pre-judgment order of satisfaction. Without judgment, there has been no determination of liability. Garden State’s tender specifically denied liability. To paraphrase Swigert v. Welk, 213 Md. at 619, when one claiming no liability obtains a release for himself from the injured party, the liability of others is not affected. Safeway, consequently, would not be entitled to summary judgment on the basis of the accord and satisfaction between appellant and Garden State. Under the holding in Swigert v. Welk, supra, moreover, even the released party, here Garden State, would not be entitled to summary judgment.

It will be recalled that in Swigert, the third party claim was for contribution; in the case on appeal, Safeway seeks to be indemnified by Garden State. Safeway’s third party pleading did not seek contribution. The distinction between indemnity and contribution is real. The effect of that distinction in the case on appeal necessarily must be considered in light of the clear provision of the Uniform Contribution Among Tortfeasors Act that it "does not impair any right of indemnity under existing law.” Art. 50, § 21, Md. Code. This provision of the statute was considered in Park Circle Motor Co. v. Willis, 201 Md. 104, 113 (1952), where the Court of Appeals, after referring to the statutory provision, wrote:

"There are many instances where an injured third person may recover against either of two persons who are, as far as he is concerned, thus joint tortfeasors. It does not follow, however, in all such cases that the two wrong-doers are equally liable. There may be, and often are, cases where one of the wrong-doers is primar ily liable, and in those cases, such a one must bá&r the whole loss.”

We believe this language in Park Circle requires the fashioning of a particularized ruling in light of the hybrid situation caused in this case by the accord and satisfaction which, we have determined, has not barred the litigation. Our belief that there is a need to fashion a particularized ruling is supported by the Court of Appeals’ language in Swigert. There, the Court noted that neither plaintiff nor defendant could recover against the third party defendant. 213 Md. at 622. Plaintiff was precluded by the release he gave Welk; Swigert’s right of contribution would not cause a recovery by him against Welk but would only reduce Swigert’s liability to plaintiff. If, however, at trial in the case before us, Safeway were to show, as it alleged, that Garden State was primarily liable, and the verdict exceeded $1,000, Garden State would bear as indemnitor, per Park Circle, a loss greater than the peace it won through the accord and satisfaction applicable through Scheffenacker v. Hoopes, supra. Garden State may have no right to summary judgment under our reasoning in this case but the accord and satisfaction it obtained should not be rendered worthless by a third party claim of indemnity. The hybrid release or satisfaction determined here, therefore, demands a particularized solution.

We conclude that Scheffenacker v. Hoopes, supra, allows Garden State to rest assured that its liability will not exceed the $1,000 it has paid. Applying the Uniform Act as interpreted by Swigert v. Welk, supra, summary judgments in favor of Garden State and Safeway were granted erroneously. Appellant may proceed to trial, where liability will be determined in this matter for the first time. If the verdict is against Safeway, but no right of indemnification is found on the third party claim, cf., Giant Food, Inc. v. Wash. Coca-Cola, 273 Md. 592, 607 (1975), there will be no issue requiring a particularized solution. Appellant will be entitled to the benefit of her judgment against Safeway, and the $1,000 already pocketed from Garden State. If, however, Safeway is held liable and wins a judgment in its third party action, against .the alleged indemnitor, Garden State, because of the manufacturer’s primary liability, appellant should be entitled to nothing more than she has already obtained from Garden State. In this manner, the efficacy of the accord and satisfaction between Garden State and appellant will be maintained and the indemnitor, Garden State, will not lose the benefit of its satisfaction. Needless to say, if Safeway gets a defendant’s verdict, no particularized issue will be needed; appellant will have had the benefit of the $1,000 received from Garden State.

Judgments reversed.

Appellees to pay costs.

      . Garden State additionally filed general issue pleas in contract and tort.

      . At the hearing, counsel for Garden State, which is unrepresented on appeal, argued that Safeway and Garden State "could never be joint tortfeasors” because Safeway had not been sued in tort. Consequently, it was argued, the joint tortfeasors Act did not apply-and the parties were bound by the “original common law” where "a release of one is a release of all and there can only be one satisfaction.”

      . As Dean. Prosser makes clear, the American decisions "rather hopelessly confused” release and satisfaction. Prosser, Joint Torts and Several Liability, 25 Cal. L. Rev. 413, 423 (1937); Prosser, Torts, 4th ed., p. 301; 1 Harper & James, Torts, § 10.1, p. 711. The effect of either a release or satisfaction at common law was to bar further proceedings or recovery from another tortfeasor. See Note, J oint Tort-Feasors — Release of One J oint Tort-Feasor As A Bar To Right of Action Against Others — Satisfaction — Judgments, 22 Minn. L. Rev. 692 0938).

      . Prosser, id., p. 425:
      "The position that a release of one necessarily releases all seems most unreasonable. A release of one cause of action is not a release of another independent one. The essential question is whether the plaintiffs claim has been satisfied; and this is clearly a matter of the intent of the parties to be determined in the light of the language of the instrument, the amount paid, and the surrounding circumstances. The objection that there may be double recovery is meaningless, for the amount paid under the release must be credited pro tanto to the second tort-feasor. Even as applied to cases of concerted action, the rule that a release of one releases all seems an antiquated survival of common law procedural notions; it has no justification at all in the case of mere concurrent negligence.”

      . Wigmore fired some choice epithets at the rule, calling it "obnoxious,” "aged and infirm, being quite anachronistic,” "a surviving relic of the Cokian period of metaphysics” and “the hoary fallacy.”

      . Allen, Joint Tortfeasors, Contribution, Indemnity and Procedure, 1948, p. 3.

      . Art. 50, § 16 (a), Md. Code, provides " 'Joint tortfeasors means two or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them.’”

      . Art. 50, § 17, Md. Code.

      . Art. 50, § 19, Md. Code.

      . Art. 50, § 21, Md. Code.

      . See pages 8-10, supra.

      . Appellant sued the party, Safeway, from whom she purchased the product. Note, however, that the strict rules of privity have been relaxed by Section 2-318 of the Commercial Law Article, Md. Code.

      . Prosser, The Assault Upon the Citadel (Strict Liability to the Consumer), 69 Yale L.J. 1099, 1126 (I960). Compare, Freeman & Dressel, Warranty Law in Maryland Product Liability Cases: Strict Liability Incognito, o U. of Bit. L.R. 47, 49 (1978).

      . See 224 Md. 111, 113, n.1 (1961):
      "The disposition we made of the case renders it unnecessary to discuss the claim against the hospital arising from breach of warranty in the sale of the steel plate alleged to have been defective. Appellants treat the matter as if the hospital were charged only with negligence; appellees say that a negligent actor cannot be a joint, concurrent or successive tortfeasor with one charged with breach of warranty. At least one Court has so said, holding that a release of the original tortfeasor was not a bar to a later action against a physician for breach of contract in not skilfully performing his agreement properly to treat the injured person. Von Blumenthal v. Cassola, 3 N.Y.S.2d 246, affirmed without opinion, 6 N.Y.S.2d 342.”

      . One of the opinions relied upon by Judge Miller was Bryer v. Rath Packing Co., 221 Md. 105 (1959), a case in which a consumer, allegedly injured by bones found in a sealed container of 'Ready to Serve Boned Chicken’, sued the manufacturer alleging both negligence and breach of warranty. There, the Court of Appeals noted, 221 Md. at 109:
      "Because the question of fitness and safeness for human consumption is measurable by the same tests in both tjie warranty cases and the negligence cases in which negligence is proven or properly to be inferred, both classes of cases may be precedents of value in deciding the case before us.”

      . Frericks v. General Motors Corp., 278 Md. 304, 307 (1976); Volkswagen of America v. Young, 272 Md. 200, 220 11974).

      . Note, e.g., Mattos, Inc. v. Hash, 279 Md. 371, 379 (1977) where the Court of Appeals wrote:
      "'In an action brought for breach of implied warranty of merchantability under § 2-314 of the U.O.C., it is necessary to show not only that the warranty existed, but also that it was breached and that the breach was the proximate cause of the injury. Giant Food, Inc. v. Wash. Coca-Cola, 273 Mil. 592, 602, 332 A.2d 1 (1975), aff'g Sheeskin v. Giant Food, Inc., 20 Md. App. 611, 620-21, 318 A.2d 874 (1974); see Erdman v. Johnson Brothers, 260 Md. 190, 195. 271 A.2d 744 (1970).”
      It should be noted, additionally, that contributory negligence may be asserted as a bar to warranty recovery. 279 Md. at 381.

      . In the case on appeal, the correspondence accompanying the November 21, 1977 check, like the release obtained by Welk, contained a denial of Garden State’s liability. Specifically, the tender of the check was accompanied by the statement that "our payment is not an admission of liability.”

      . On the heels of Grantham, the Court of Appeals decided Pemrock, Inc. v. Essco Co., 252 Md. 375 (1969) where the "effect of a release in favor of all mankind” was considered. The Court looked carefully at the release which was before it. In reaching its decision, the Court wrote, 252 Md. at 379:
      "The cases have said that if one claim or remedy is pursued to judgment an inconsistent claim is thereafter barred. [Citations omitted]. The theory of the Maryland statements seems to have been that the plaintiff may not again vex the same defendant if he has already taken judgment against him for the same wrong. [Citations omitted]. None of the cases cited just above involved a settlement without judgment....
      Various cases in Maryland have said or held that there can be but one recovery for a single wrong, whether the wrongdoers are joint tortfeasors or not [citing Grantham, among others], but none is fully comparable to the case before us on the facts.”

      . Where a release is "in favor of all mankind,” i.e., discharges not only the payor of the consideration but all others against whom claim may be made, the release bars all further claims. Pemrock, Inc. v. Essco Co., 252 Md. 374 (1969); Stefan v. Chrysler Corp., 452 F. Supp. 262 (D. Md. 1979).

      . The correspondence between Garden State’s insurer and appellant’s counsel disclosed no interest in Safeway and certainly demonstrated no intention to benefit Safeway. Compare, King, Accord and Satisfaction by a Third Person, 15 Mo. L. Rev. 115, 122 (1950).

      . In Trieschman v. Eaton, 224 Md. 111, 116-7, n.4 (1961) the Court of Appeals wrote:
      "The experts in this field agree that the distinction between satisfaction in form and satisfaction in fact should be determined in every case and control the result. [The Court then quoted from Prosser and cited Harper and James, as well as anl opinion of Judge Rutledge for the Court of Appeals for the District of Columbia in McKenna v. Austin, 134 F.2d 659, 664, which repudiated the common law rule [regarding releases! and adopted the reasoning of Prosser and Harper and James.”
      It should be noted that in a true or pure release situation the intent or understanding of the parties is the primary or "real question” to be asked in gauging the effect of a release. Lahocki v. Contee Sand & Gravel Co., 41 Md. App. 579, 621 (1979), rev’d on other grounds, in General Motors Corp. v. Lahocki, 286 Md. 714 (1980). On the contrary, what the parties do in an accord and satisfaction situation binds them regardless of protestations to the contrary. Scheffenacker v. Hoopes, supra.

      . Safeway has argued on appeal that it could not be liable to appellant. Safeway relied on Child’s Dining Hall Co. v. Swingler, 173 Md. 490 (1938), a restaurant case. The possible liability of a retailer of sealed containers of food seems, rather, to be governed by Sheeskin v. Giant Food, Inc., 20 Md. App. 611. 629 (1974), aff'd in Giant Food, Inc. v. Wash. Coca-Cola, 273 Md. 592, 607 (1975). Note, however, that:

        "In contrast to the general rule that a retailer is liable in warranty for latent defects, there is a minority view that retailers do not warrant the fitness of products made by others and sold in sealed packages or containers. These cases point either to the inability to inspect or to the lack of reliance on the seller’s skill.” 2A Frumer & Friedman, Products Liability, § 19.03[4],
      Legislation aimed at modifying the liability rules regarding sealed containers was introduced during the 1980 General Assembly. See Senate Bill 495. The bill died, but a commission to study the laws relating to product liability was formed pursuant to Senate Joint Resolution 23. The commission, by the resolution, is charged with reporting to the General Assembly by January 1, 1981.

      . See Leflar, Contribution and Indemnity Between Tortfeasors, 81 U. Pa.,L. Rev. 130 (1932); Digges, Products Liability Revisited, 7 U. Bit. L. R. 1, 27 (1977). In 3A Frumer & Friedman, Products Liability, § 44.02(21, the distinction is drawn succinctly:
      "It is essential... to have a clear understanding of the distinction between indemnity and contribution. * * * Contribution properly refers to the distribution among responsible tortfeasors of the loss caused to an injured party, whereas indemnity looks to the full shifting of ultimate responsibility to the one who is not only legally but also morally responsible for the loss complained of.” [Emphasis in original].

      . Safeway’s third party claim did not seek contribution. On the pleadings in this case, there is no claim by one tortfeasor for contribution from a joint tortfeasor.


author: Weant, J.,

text:
    EDWIN L. EVERHART v. BRUCE A. MILES et ux.
    [No. 94,
    September Term, 1980.]

      Decided November 10, 1980.

    The cause was argued before Morton, Moore and Weant, JJ.

      Leslie J. Clark for appellant.

      Gary G. Leasure for appellees.
   Weant, J.,

delivered the opinion of the Court.

The appellees, Bruce A. Miles and Sharon Miles, his wife, have sued the appellant, Edwin L. Everhart, on the theory of unjust enrichment. We shall affirm the trial court (Circuit Court for Allegany County, Naughton, J.), which awarded restitution to the appellees in the amount of Thirty-three Thousand, Seven Hundred Ninety-four Dollars and Two Cents ($33,794.02) on the ground that the appellant had been unjustly benefited by the actions of the appellees. In so doing, we have' considered the following questions propounded by the appellant:

1. Did the Court err in overruling the demurrer of the Respondent to the Bill of Complaint?
2. Are the Complainants entitled to compensation in equity under the unjust enrichment doctrine where Complainants entered into possession of a farm for which they were negotiating, without a contract, and while without a contract, did without the knowledge and consent of the Respondent, make extensive improvements and repairs to the structures and machinery on the farm, and then countermanded the original offer and substituted a new offer therefor, and upon rejection, terminated their possession and withdrew from the farm without any demand for compensation?
3. Is Complainant entitled to reimbursement for sileage [sic] placed in the two silos prior to his rejection of the contract and subsequent departure?

Doctor Leslie Miles and his son Bruce negotiated with Doctor Edwin L. Everhart in March and April of 1978 for the purchase of some one hundred one acres of land, including barns, silos, and farmhouse for One Hundred, Seventy-nine Thousand Dollars ($179,000.00), along with seventy-five head of Holstein cattle for Fifty Thousand Dollars ($50,000.00) and certain equipment and farm machinery for Fifty Thousand Dollars ($50,000.00), making a total purchase price of Two Hundred, Seventy-nine Thousand Dollars ($279,000.00). The purchasers were to make a Twenty-nine Thousand Dollar down payment ($29,000.00), with a security agreement to cover the cattle and equipment. The cattle and equipment were to be paid for over a ten year period in monthly installments of Eight Hundred, Eighty Dollars and Three Cents ($880.03); the real property was to be acquired through a lease purchase agreement over a period of ten years, with a monthly rental of One Thousand, Three LIundred One Dollars ($1,301.00). At the end of this ten year period, the appellees were to be able to exercise an option to purchase this land. In this regard a purchase money mortgage was to be executed by the appellees in the amount of One Hundred, Seventy-nine Thousand Dollars ($179,000.00), with monthly mortgage payments of Two Thousand, Two Hundred Nineteen Dollars and Forty Cents ($2,219.40).

In May of 1978 Bruce Miles and his wife traveled from North Carolina to the Allegany-Garrett Counties area for the purpose of taking over their proposed purchases. They moved onto the farm on or about 1 June 1978, at which time they made a down payment of Ten Thousand Dollars ($10,000.00) in lieu of the originally agreed upon amount of Twenty-nine Thousand Dollars ($29,000.00). On this same date, a contract of sale was to have been executed; however, for various reasons this was never accomplished and negotiations continued. Nevertheless, the appellees lived on the farm, ran the dairy business, and made certain improvements; for example, they fixed the barn roof, renovated the farmhouse, installed a septic system, and replaced the house pump, despite the absence of a written agreement. Further, they made repairs to a tractor, a silo loader, and a field chopper. Also, through their efforts, approximately six hundred tons of silage were put into the silos; this silage remained behind when the appellees vacated the farm on 21 September 1978.

During the appellees’ stay on the farm, efforts were made by the parties to have a written contract prepared that was agreeable to all parties but this never came about. Eventually, the appellees lowered their total offer for the purchase of the farm, equipment, and cattle to One Hundred and Eighty-nine Thousand Dollars ($189,000.00); this offer was flatly rejected by the appellant, thereby causing the appellees to depart forthwith.

I.

Initially, the appellant demurred to the appellees’ bill of complaint alleging that the appellees had an adequate remedy at law, that the equity court had no jurisdiction over the matter, and that the appellant would have no right to set-off or counter-claim in equity. The docket entry of 1 May 1979 indicates that this demurrer was overruled. In responding to the appellant’s contention that the trial court erred in overruling his demurrer, we will, for purposes of argument, consider as valid the proposition that the equity court did not have jurisdiction originally.

In the case of Mayor of Landover Hills v. Brandt, 199 Md. 105, 85 A.2d 449 (1952), the Court of Appeals considered a situation wherein an action was improperly brought in equity under a statute that did not confer jurisdiction in that forum. The Court determined this problem by saying at pages 107-08, 85 A.2d at 451: "However, the case could have been removed from equity to law, ... and heard before the same judge. Under the circumstances we are constrained to pass on the merits of the case without remanding it.” (Citations omitted). Along the same vein, the case of Burns v. Bines, 189 Md. 157, 55 A.2d 487 (1947), involved a situation wherein the litigation was pursued in the wrong court, with the Court nevertheless noting the following at page 164, 55 A.2d at 490:

This case, which was improperly brought at law, could have been properly brought in equity in the same court before the same judge. If found meritorious, it could have been removed from law to equity. ... We should, therefore, pass upon the merits as if the case had been so brought or removed and should not require a new suit in equity. [Citation omitted].

In each of the above-cited cases, there existed statutory authority for the Court holding that although the suit was instituted in the wrong forum, it could nevertheless be disposed of therein. See Maryland Annotated Code (1939) article 75, section 124, and Maryland Annotated Code (1951) article 75, section 125, entitled "Removal of Cases from Courts of Law to Courts of Equity and Vice Versa.” Despite the repeal of this particular provision by Acts 1957, chapter 399 § 1, the underlying rationale of said statute has survived through Rule 515 of the Maryland Rules of Procedure. As Chief Judge Brune speaking for the Court of Appeals in Dormay Construction Corp. v. Doric Co., 221 Md. 145, 156 A.2d 632 (1959) stated, at page 153, 156 A.2d at 637:

[T]he existence of a right to bring an action at law will not oust the jurisdiction of equity if there is any ground upon which relief in equity may be invoked. See also Union Passenger Ry. Co. v. City of Baltimore, 71 Md. 238, . . . holding that the then existing statutory provisions for discovery at law did not oust equity jurisdiction... .[]

Because we find that there is a "ground upon which relief in equity may be invoked,” i.e., in section II, infra, we determine that the doctrine of unjust enrichment has been recognized in our equity courts, we are persuaded that even if a court of law would have been the proper forum in which to institute the present case, an equity court could nevertheless exercise jurisdiction.

The complaint that the appellant would be deprived of his right to set-off or a counter-claim seems even less persuasive. We know of no rule of law that prohibits such pleading in a court of equity. In fact, the court’s award provided for a set-off on behalf of the appellant.

We shall therefore hold that the trial court did not err in overruling the demurrer of the appellant to the appellees’ bill of complaint.

II

The second question posed by the appellant can succinctly be expressed as whether, under the circumstances which existed in this case, the trial court erred in awarding compensation to the appellees on the basis of the doctrine of unjust enrichment.

Unjust enrichment is defined as
the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience. A person is enriched if he has received a benefit, and he is unjustly enriched if retention of the benefit would be unjust. Unjust enrichment of a person occurs when he has and retains money or benefits which in justice and equity belong to another.

66 Am. Jur. 2d Restitution and Implied Contracts § 3 (1973) (footnote omitted). Similarly, Williston on Contracts § 1479 (3rd ed. 1970) sets forth the three elements that must be established to sustain a claim based on unjust enrichment; these are:

1. A benefit conferred upon the defendant by the plaintiff;
2. An appreciation or knowledge by the defendant of the benefit; and
3. The acceptance or retention by the defendant of the benefit under such circumstances as to make it inequitable for the defendant to retain the benefit without the payment of its value. [Footnote omitted].

Also, in speaking of unjust enrichment Restatement of Restitution § 1 (1937) makes this comment, "[a] person who has been unjustly enriched at the expense of another is required to make restitution to the other.” However, these authorities maintain that unjust enrichment does not exist where the benefit has officiously been thrust upon the defendant. With this in mind, we turn to the facts of the instant case.

Thorn is no doubt that the appellant knew and accepted that the appellees were expending substantial amounts of money for repairs and improvements of his real property. Further, the appellant benefited from the conditioning of his farm equipment, as well as from the retention of certain milk checks that monetized as a result of the appellees’ labors.

The question then arises as to whether or not there was an officious conferrance of these benefits. Restatement of Restitution § 2 (1937) indicates that officiousness is constituted by "interference in the affairs of others not justified by the circumstances under which this interference takes place.” In this regard the appellant argues that the appellees thrust the benefits in question upon him and thus that, he should not be considered to be unjustly enriched. As support he relies on Gould v. American Water Works Service Co., 52 N.J. 226, 245 A.2d 14 (1968), cert. denied, 394 U.S. 943, 89 S. Ct. 1274, 22 L. Ed. 2d 447 (1969). Specifically, he depends on the holding of the New Jersey court that the plaintiff therein was a volunteer. Accordingly the appellant would have us designate him similarly because in the present case there was no request for what was done and hence the fact that drawn out negotiations were unsuccessfully held was no basis for forcing liability on the appellant. Gould, however, is not directly on point. In that case the plaintiff dug a well on his own property without any request from the defendant American Water Works; rather, Mr. Gould did this on sheer speculation, hoping that he would be able to sell the well to the American Water Works at a later date. The negotiations spoken of in that case by the New Jersey court were negotiations carried on a long time after the drilling of the well and entailed the sale of same. Moreover, the unjust enrichment complained of was the alleged benefit that American Water Works Company obtained from Gould’s experience in drilling for water across the road from some property later acquired by American Water Works. We can readily agree that in such a situation the plaintiff did occupy the position of a volunteer.

Be that as it may, in our case the appellees were told to take over the farm and run it as they saw fit; in essence, they were told that it was theirs. In fact, although the appellant denies visiting the farm after July 1, he does admit that he did see that the appellees were making certain repairs and improvements thereon. Further, much of the work that was done appears to have been necessary in order to operate the farm. We cannot, therefore, hold that this constitutes officiousness, since it was neither thrust upon the appellant nor strictly voluntary on the part of the appellees.

Maryland has recognized the doctrine of unjust enrichment or restitution or melioration as it is sometimes called. In the case of Plitt v. Greenberg, 242 Md. 359, 219 A.2d 237 (1966), at pages 363-64, 219 A.2d at 241, the Court said:

Plitt, however, does possess a colorable cause of action grounded on a theory of unjust enrichment or restitution. Although Greenberg may not have known that he had received the proceeds of Plitt’s check into his account, and no express contract for debt existed between Plitt and Greenberg, the law implies a debt "whenever the defendant has obtained possession of money which, in equity and good conscience, he ought not to be allowed to retain.” [Quoting State, use of Employment Board v. Rucker, 211 Md. 153, 158, 126 A.2d 846, 849 (1956)].

In that same case at page 364, 219 A.2d at 241, the Court goes on to say: "In an action for unjust enrichment the burden is on the plaintiff to establish that the defendant holds plaintiffs money and that it would be unconscionable for him to retain it.” (Citations omitted). Certainly it would not be in equity and good conscience to allow the appellant herein to retain the fruits of the appellees’ labors, which were performed without a contract but within the possessive blessing of the appellant and with his knowledge that improvements were being made.

Another case relied on by the appellant is the equity case of Welsh v. Welsh, 254 Md. 681, 255 A.2d 368 (1969). In Welsh the Court of Appeals reversed the trial court by finding that the occupiers of the land in question were not bona Gide possessors when they built a service station notwithstanding the knowledge of the owner’s claim to the property. Having so found, the Court held that the occupiers were not entitled to compensation for improvements made thereon. Of significance in the above-cited case is the fact that there was considerable dispute over the ownership of the land; in fact, an ejectment action had been instituted. In spite of knowledge of this, the claimants proceeded with the erection of an addition to the original service station building.

In the instant case, on the other hand, the appellees were in possession of the property in question with the whole-hearted approbation of the appellant. In this regard, the lower court found that "| w]ith the consent of the [appellant], the [appellees] took possession of the farm and began to operate it. The parties assumed that a sale’s contract would be executed.” Furthermore, it is apparent that all of the improvements were made during the time that the negotiations concerning the terms of the contract to be executed were continuing.

One final note in reference to the Welsh case: there the Court of Appeals quoted with approval at pages 88-89, 255 A.2d at 372, the equitable doctrine of melioration or compensation for improvements as stated in 2 H. Tiffany, Real Property § 625 (3rd ed. 1939):

"Since the rule that erections or additions made by one who has no rights to land are fixtures, and therefore not removable by him, even though he made them in the belief that he was the owner of the land, is calculated to cause hardships to an innocent occupant of another’s land, by giving the benefit of his labor and expenditures to the landowner, the courts of this country, without either imputing fraud or requiring proof of it, hold it inequitable to allow one to be enriched under such circumstances by the labor and expenditures of another who acted in good faith and in ignorance of any adverse claim or title. Applying this doctrine of'unjust enrichment/ a court of equity will, on the principle that he who seeks equity must do equity, refuse its assistance to the rightful owner of the land as against an occupant thereof unless he makes compensation for permanent and beneficial improvements, made by the latter without notice of the defect in his title.”

At no time during the appellees’ stay on the farm did the appellant question their right to possession. In fact, according to the testimony, the appellant did not visit the farm subsequent to July 1 even though he knew of some of the appellees’ labor and expenditures. Also, we find no assertion on the part of the appellant that he ever questioned the appellees’ right to possession of the property in question or their right to make improvements thereon. As the Court of Appeals stated in Hamilton and Spiegel, Inc. v. Board of Education, 233 Md. 196, 201, 195 A.2d 710, 712 (1963), during the course of a discussion concerning unjust enrichment: "A person is unjustly enriched if the circumstances of the receipt of the benefit are such as between the two that to retain it would be unjust.” (Original emphasis). This also was the finding that was made by the circuit court in the case sub judice and the record upholds this finding.

We are therefore constrained to hold that the trial court did not err in awarding compensation to the appellees based on the doctrine of unjust enrichment.

Ill

The appellant questions the entitlement of the appellees to reimbursement for the silage placed in two silos belonging to the appellant. There appears to be no question that the silos were filled through the efforts of the appellees and that they were full or approximately full when the appellees departed. Since the silage was produced as a result of the appellees running the farm as their own, on property leased by them, this calls into play the unjust enrichment doctrine as discussed above. We see no reason to disturb the chancellor’s finding in this regard.

Judgment affirmed.

Costs to be paid by the appellant.

      . (Footnote added). For an interesting treatise of the ever-expanding field of equity and the resultant blurring distinction between law and equity, see Brown, The Law/Equity Dichotomy in Maryland, 39 Md. L. Rev. 427 (1980).