text:
    WILLIAM L. BARTLETT v. DEPARTMENT OF TRANSPORTATION et al.
    [No. 1082,
    September Term, 1977.]

      Decided July 13, 1978.

      The cause was argued before Thompson, Liss and Wilner, JJ.

      Dwight E. Thomey, with whom were Baker & Lockhart, P.A. on the brief, for appellant.

      Walter W. Claggett, Special Attorney, with whom were Francis Bill Burch, Attorney General, and Nolan H. Rogers, Assistant Attorney General, on the brief, for appellees.
   Thompson, J.,

delivered the opinion of the Court.

On April 24, 1963, the appellant, William L. Bartlett, conveyed by deed a certain parcel of land supposedly consisting of 10.63 acres to the State Roads Commission. It was subsequently discovered, much to the surprise of appellant, that the parcel conveyed actually encompassed 13.13 acres. Consequently, on April 9, 1976, appellant filed a bill of complaint in the Circuit Court for Cecil County asking that the deed be rescinded on the grounds of mutual mistake and the State be required to pay $66,000 in rent for its use of the property in question, together with interest at the rate of 6%. The chancellor, H. Kenneth Mackey, denied rescission but did reform the deed by increasing the sale price to reflect the additional 2V2 acres acquired by the State. On appeal appellant maintains: (1) the chancellor erred in not rescinding the contract, and (2) even if the contract should not have been rescinded, damages should have been calculated according to the fair market value of the property at the time of the trial rather than in accordance with the contract price. We see no merit in these contentions and shall affirm the decree.

There is no material dispute concerning the facts which led to this appeal, most of which have been stipulated by the parties. On February 1, 1963, appellant granted the State Road Commission an option to purchase for $11,300 a part of a tract of land. At the time both parties believed the parcel contained 10.63 acres and the option price was based on a negotiated sum of $432.74 per acre. The option was exercised by appellees and on April 24,1963, the land was conveyed to the State. Prior to the execution of the deed, the parcel had been marked by stakes and both parties had observed the area staked out. At no time have appellees occupied any land other than that described in the deed. There is no suggestion of bad faith on the part of either of the parties.

I Availability of Rescission

In order to be entitled to a decree rescinding a deed on the grounds of mutual mistake, it must appear that the mistake was such that if the true facts had been known the deed would not have been executed. See Gross v. Stone, 173 Md. 653, 197 A. 137 (1938); Reigart v. Fisher, 149 Md. 336, 346-347, 131 A. 568, 572 (1925). If it appears that the discrepancy would not have prevented the party from entering into a contract, then the mistake is immaterial and the proper remedy is an adjustment in the purchase price. In determining materiality the intention of the parties and not the size of the discrepancy controls. See Reigart v. Fisher, supra, 149 Md. at 346, 131 A. at 572; Keating v. Price, 58 Md. 532, 537 (1882).

In deciding whether the mistake in question is material we think the case of Henn v. McGinnis, 182 Iowa 131, 165 N. W. 406 (1917) is particularly instructive. There the vendor sought an adjustment in the purchase price as the result of an excess in the amount of land actually conveyed over the amount recited in the deed. The purchase price had been negotiated on a per acre basis and both parties had inspected the land prior to the sale. The purchaser claimed the only remedy available to the vendor was rescission. The court disagreed, indicating rescission was not available because the mistake was based on an immaterial fact, and ruled the proper remedy was an adjustment in the purchase price. In reaching this conclusion the court reasoned the mistake merely involved an error in the computation of the consideration inasmuch as both parties understood exactly what land was being sold and had agreed on a specified price per acre.

As in Henn the parties in the instant case contracted for the sale of a specific parcel of land. Appellees planned to use the land for the construction of an expressway and to this end had staked out the amount of land required. Both parties observed the area staked out and after a period of negotiation, agreed on a set price per acre. Based on these facts it is apparent that the contract was intended to be a sale of a certain parcel of land and not a sale of a specific amount of acreage. As both parties mistakenly believed the parcel contained only 10.63 acres, there was a mistake only in computing the total purchase price. The mistake did not go to the essence of the agreement but involved only a computational error which was not material.

Counsel for appellant argues that if appellant had known the parcel was actually comprised of 13.13 acres, he might have attempted to negotiate a higher purchase price per acre and as such the mistake was material. There is no factual basis for this assumption in the record, and counsel’s argument amounts to nothing more than sheer speculation. Even if counsel’s assumption were accurate, and the mistake were to be considered material, appellant would still not be entitled, as a matter of right, to rescind the contract because rescission is an extraordinary remedy. Its use rests largely within the discretion of the trial judge and should not be granted unless it would be equitable and just under all the circumstances. Suburban Garden Farm Homes Corp. v. Adams, 171 Md. 212, 218, 188 A. 808 (1937). In determining whether rescission would be equitable a number of factors must be considered including whether either party has changed his position in reliance on the deed. See 3 A. Corbin, Contracts § 597 at 582 (1960). In the case at bar the State has expended considerable sums of money in constructing a road on the property it acquired. As such, it would have been inequitable for the court to rescind the deed.

II Proper Determination of Damages

Appellant’s next assignment of error is that the trial judge should have awarded damages based on the fair market value of the property at the time of the trial rather than in accordance with the contract price. In arguing this point, appellant maintains the condemnation laws are controlling. We fail to see, however, what relevancy provisions for condemnation have on a contract voluntarily entered into between two parties, even though it is obvious that, if the parties had not come to terms voluntarily, the State would have instituted condemnation proceedings.

In awarding damages to appellant the trial judge in effect reformed the contract. Where there has been a mutual mistake which prevents the parties from expressing their true intent, a court of equity will reform the written instrument to make it reflect the true intention of the parties, provided that the agreement contemplated is shown by clear, strong, and convincing evidence. E.g., Mattingly v. Houston, 235 Md. 54, 59, 200 A. 2d 160 (1964); Brady v. Berke, 33 Md. App. 27, 31-32, 363 A. 2d 537, cert. denied, 278 Md. 716 (1976). Consequently, the chancellor was confined to what the parties actually intended and could not have awarded appellant the fair market value of the property at the time of trial. The evidence before the chancellor strongly showed that had the parties realized the entire acreage that was being conveyed by the deed, the price would simply have been increased at the agreed price per acre. In awarding appellant that sum plus interest, and the taxes which he had paid during the intervening years, the action of the chancellor seems to us to have been adequate, if not more than adequate.

Decree affirmed.

Costs to be paid by appellant.

      . The State Roads Commission is now a subagency of the State Highway Administration, which is part of the Department of Transportation, appellee here. See Md. Code, Trans. Art. § 8-210 and § 8-218 (1977).

      . In their brief appellees maintained that prior to the institution of the suit they had offered to pay appellant an additional sum based on the contract price, plus interest, for the additional 2Vz acres they acquired.

      . The damages awarded by the chancellor were as follows: (1) $1,081.85 (cost of 2V2 acres at $432.74 per acre) (2) $47.88 (this represented the amount of taxes paid by appellant on the property during the intervening years) (3) 87< interest for 14 years on the sum of (1) and (2).

      . Appellees did not file a cross appeal on the award of damages.

      . The actual price paid for the land was $4,600. An additional $6,700, bringing the total price to $11,300, was given to appellant to cover the construction of an access road.

      . In support of his position that he was entitled to rescission appellant cites Witmer v. Bloom, 265 Md. 178, 288 A, 2d 323 (1972). In Witmer the court held that the grant or specific performance was improper where there had been a material mistake in the quantity of land involved. That decision is not controlling on the question of rescission. As was stated in Suburban Garden Farm Homes Corp. v. Adams, supra, 171 Md. at 218:
      “It is undoubtedly within the sound discretion of the chancellor to refuse to rescind a contract, the specific execution of which he would not decree; and thus leave the parties to their legal remedies---But, in general, where a specific execution would be refused, a rescission will be decreed.”
      We do not perceive an abuse of discretion here.

      . See Md. Code, Real Property Art. § 12-102 et seq. (1974. 1977 Supp.) (Eminent Domain) and Md. Code, Trans. Art. §§ 8-313 — 8-339 (1977). (Quick take condemnation).
      Appellant cites Ernst v. Department of Highways, 103 So. 2d 102 (La. App. 1958) for the proposition' that damages are governed by condemnation laws even though the land is conveyed by deed. Ernst, however, does not stand for any such proposition. In that case the court found a mutual mistake in a deed, conveying a right of way prevented a meeting of the minds and rescinded the contract. In so doing the court noted that the land could still be condemned but observed that if this was done at least the owner could prove certain damages which he would not have recovered if the contract had been enforced.


source: Caselaw Access Project

author: Davidson, J.,

license: Public Domain

text:
    CHESAPEAKE PARK, INC. v. AUSTIN A. DONLEVE et al.
    [No. 1130,
    September Term, 1977.]

      Decided July 13, 1978.

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

      Joseph P. Alearese, with whom was Robert J. Romadka on the brief, for appellant.

      Anne Kay Kramer for appellees.
   Davidson, J.,

delivered the opinion of the Court.

On 13 October 1972, the appellant, Chesapeake Park, Inc. (owner), filed a petition to reclassify approximately 18.5 acres (subject property) of its 200 acres of land from the M.H. Zone (Manufacturing, heavy), I.M. District (Industrial, major), to the B.M. Zone (Business, major), I.M. District (Industrial, major). On 22 August 1973, the Baltimore County Zoning Commissioner granted the reclassification. On 20 May 1974, the Baltimore County Board of Appeals (Board) affirmed. On 14 June 1974, the appellees, Austin A. Donleve and others (protestants), filed an appeal in the Circuit Court for Baltimore County. On 8 October 1974, the owner moved to dismiss on the ground that the protestants lacked standing because they were not aggrieved parties. On 15 April 1975, the Circuit Court entered an order dismissing the appeal. The protestants appealed to this Court, which on 9 December 1975 reversed and remanded the appeal to the Circuit Court. On 5 May 1976, the Court of Appeals denied the owner’s petition for a writ of certiorari.

While the appeal was pending in the Circuit Court, the Baltimore County Council (Council), pursuant to the Baltimore County Code, enacted a Comprehensive Zoning Map for the 5th Councilmanic District of Baltimore County, effective 29 November 1976, which, among other things, classified all of the owner’s 200 acres, including the subject property, in the M.H. Zone, I.M. District. On 21 January 1977, the protestants filed a motion to dismiss the appeal then pending in the Circuit Court on the ground that, as a result of the enactment of the 1976 Comprehensive Zoning Map, the appeal was moot. On 21 September 1977, the motion to dismiss was granted. This appeal followed.

I

The owner first contends that the Circuit Court erred in dismissing the appeal because the question of whether the subject property was properly reclassified to the B.M. Zone is not moot. It maintains that an appeal from a zoning reclassification becomes moot only if the Council changes the zoning classification of the subject property in a comprehensive rezoning or abolishes the requested zoning classification while the appeal is pending. It points out that the subject property was classified in the M.H. Zone by both the 1971 and 1976 Comprehensive Zoning Maps. It concludes that because the zoning classification of the subject property was not changed by the enactment of the 1976 map, this appeal is not moot. We do not agree.

Baltimore County Code, § 22-22 (a) provides in pertinent part:

“(a) The zoning commissioner shall have the power to make a change as to the district, division or zone within which a particular piece of property is classified (zoning reclassification) ..,.”

Section 22-27 provides in pertinent part:

“Any reclassification when granted by the county board of appeals shall, in the absence of an appeal therefrom, have the force and effect of law.”

The Baltimore County Charter § 602 (a) provides in pertinent part:

“In all cases, the order of the county board of appeals shall be final unless an appeal be taken therefrom____”

In addition, Maryland Rule B6 a provides in pertinent part:

“The filing of an appeal shall not act as a stay of the action appealed from____”

In Swarthmore Co. r. Kaestner, the Court of Appeals held that a zoning reclassification granted by the Board has the force and effect of law, although it is subject to review on appeal. In reaching that result, that Court construed the language of the Code and the Charter to mean

“that the status of the board’s action which has the force and effect of law is subject to the ultimate action of the courts on appeal, not that during the period of the appeal, the board’s action is suspended and ineffective.”

Here, on 20 May 1974, the Board reclassified the subject property from the M.H. Zone to the B.M. Zone. Thus, from the time of the Board’s action, the subject property was classified in the B.M. Zone. The enactment of the comprehensive rezoning, effective 29 November 1976, which classified the subject property in the M.H. Zone, changed the subject property’s classification while an appeal was pending. Accordingly, that appeal is moot.

II

The owner additionally contends that dismissal of this appeal as moot deprives him of due process and equal protection. It maintains that because in Baltimore County the Council enacts a comprehensive rezoning every four years, and because there are significant time constraints on the processing of reclassification petitions, appellate review of the Board’s grant or denial of such petitions cannot be completed. It concludes therefore that in Baltimore County appellate review of reclassification petitions is effectively denied. Again we do not agree.

The Court of Appeals has recognized that there can be circumstances which justify deciding moot questions. In Lloyd v. Board of Supervisors of Elections, that Court, in dictum, said:

“Those which we regard as the better considered and reasoned cases take the view that only where the urgency of establishing a rule of future conduct in matters of important public concern is imperative and manifest, will there be justified a departure from the general rule and practice of not deciding academic questions. They hold that if the public interest clearly will be hurt if the question is not immediately decided, if the matter involved is likely to recur frequently, and its recurrence will involve a relationship between government and its citizens, or a duty of government, and upon any recurrence, the same difficulty which prevented the appeal at hand from being heard in time is likely again to prevent a decision, then the Court may find justification for deciding the issues raised by a question which has become moot, particularly if all these factors concur with sufficient weight.” (Emphasis added.)

In some cases, the Court of Appeals has declined to decide moot questions when the disputed right existed for a period of time deemed sufficient to complete appellate review. In other cases, that Court has decided moot questions when the disputed right existed for a period of time deemed insufficient to complete appellate review.

Here, there can be no question but that, in Baltimore County, a disputed right involving a reclassification petition exists for a period of time sufficient to complete appellate review. Indeed, in the instant case, the petition for reclassification was granted by the Board on 21 May 1974. The Court of Appeals denied certiorari on 5 May 1976. The comprehensive rezoning became effective 29 November 1976. In this case, a peculiar combination of circumstances prevented the completion of appellate review on the merits. Among other things, 10 months elapsed from the time the protestants filed the appeal before the Circuit Court granted the owner’s motion to dismiss because the protestants lacked standing. In addition, there was an unexplained delay of 16 months between the time the Court of Appeals denied certiorari and the Circuit Court dismissed the appeal as moot. It is unlikely that a set of circumstances similar to those difficulties which prevented the completion of appellate review on the merits in this case would, in the future, coalesce to prevent completion of appellate review of other Board decisions on reclassification petitions. Accordingly, we decline to decide this moot question.

Judgment affirmed.

Costs to be paid by appellant.

      . Baltimore County Code, §§ 22-20 through 22-21.1 (1975 Cum. Supp.) require the Council to adopt a county-wide zoning map every four years and establish the procedures to be followed.

      . Baltimore County Code, § 22-22 (a) (1975 Cum. Supp.).

      . Baltimore County Code, § 22-27 (1968).

      . Baltimore County Code, Charter, § 602 (a) (1968).

      . 258 Md. 517, 266 A. 2d 341 (1970).

      . 258 Md. at 525, 266 A. 2d at 345.

      . Mayor of Rockville v. Dustin, 276 Md. 232, 233, 346 A. 2d 447, 447-48 (1975); Banner v. Home Sales Company D, 201 Md. 425, 428-29, 94 A. 2d 264, 265-66 (1953).

      . U.S. Const., amend. XIV § 1; Md. Const., Declaration of Rights, art. 23.

      . U.S. Const., amend. XIV § 1.

      . See, e.g., Baltimore County Code, § 22-22 (c)-(i) (1975 Cum. Supp.). Section 22-22 (c), which provides for semiannually recurring periods during which contemporaneous zoning reclassification petitions ordinarily may be considered, establishes a procedure that may delay processing of such á petition for as much as six months after filing. Section 22-22 (j) provides that no zoning reclassification shall be granted on the basis of a change in the character of the neighborhood during the first year after a comprehensive rezoning.

      . 206 Md. 36, 43, 111 A. 2d 379, 382 (1954).

        . E.g., Bishop v. Governor, 281 Md. 521, 525-26, 380 A. 2d 220, 223 (1977) (18 months); Lloyd v. Board of Supervisors of Elections, 206 Md. at 44, 111 A. 2d at 382 (5 months).

      . E.g., Sheehy v. Thomas, 155 Md. 688, 693, 142 A. 506, 507 (1928) (water fowl hunting season); Close v. Southern Md. Agr. Assoc., 134 Md. 629, 632, 108 A. 209, 210-11 (1919) (2 months).


author: Morton, J.,

text:
    WILLIAM DAVID HARRIS v. STATE OF MARYLAND
    [No. 1149,
    September Term, 1977.]

      Decided July 13, 1978.

    The cause was argued before Mokton, Davidson and MACD ANIEL, JJ.

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

      Ray K Stokes, Assistant Attorney General, with' whom were Francis Bill Burch, Attorney General, Maria A. Kendro, Assistant Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and Paul Kemp, Assistant

      State’s Attorney for Montgomery County, on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

In a jury trial held in the Circuit Court for Montgomery County (Mathias, J., presiding), appellant, William David Harris, was convicted of first degree murder, two counts of robbery with a deadly weapon, two counts of assault and battery and one count of use of a handgun in the commission of a felony. Appellant was sentenced to life imprisonment for the murder conviction, concurrent fifteen and ten year sentences for the robbery convictions, a concurrent one year sentence for each assault and battery conviction and a concurrent ten year sentence for the handgun violation.

In this appeal appellant contends that the trial judge erred when he refused (1) to admit into evidence an out-of-court statement of a codefendant which would tend to exculpate appellant; (2) to suppress certain evidence seized from appellant’s place of employment; (3) to allow appellant to present evidence in surrebuttal; (4) to grant appellant’s motion for a judgment of acquittal; and (5) to merge appellant’s lesser convictions into his murder conviction.

The record shows that about 7:30 p.m. on March 26, 1977, appellant and three other individuals entered the apartment of Michael Emory, located in Bethesda, Maryland, where they robbed Emory, his girlfriend, Beverly Ferchak, and a friend, Andrew Markow. Over $100 in cash, a shotgun, several bricks and a few baggies of marijuana were taken as were some personal items of the victims. Ms. Ferchak testified that Gregory Jones and Craig Cobb, two of appellant’s accomplices, then dragged Emory into an adjoining room and shot him to death.

As a result of information supplied by Markow and Ms. Ferchak, several officers of the District of Columbia and Montgomery County, Maryland, police departments proceeded to appellant’s house at 5:30 a.m. on March 27, where a warrantless search was conducted. Failing to find appellant or uncover any evidence there, the police officers then proceeded to the Colorado Building, an office building located in the District of Columbia, where appellant worked as a night watchman. One of the officers, Detective Raymond Green, knocked on the entrance door and when appellant appeared, pointed to his watch “like ... [he] was going to work..in order to induce appellant to open the door. When appellant did so, he was arrested.

Appellant was immediately handcuffed, taken to a desk in the lobby and seated. Detective Green then proceeded to a staircase which was located, according to appellant, about three or four feet from the desk and picked up a pillow situated on the fifth or sixth step thereof. Among other things, a .32 caliber gun was discovered when the pillow was removed. After appellant was advised of his Miranda rights, he led the police to the basement of the building where he had secreted some packets of marijuana.

Appellant concedes that the gun seized by the police at the Colorado Building belonged to him and was the murder weapon. He asserts, however, that Cobb and Jones were the murderers and that he actively protested the shooting of Emory. He further asserts that after the assailants left Emory’s apartment, his gun was returned to him together with approximately one fourth of the marijuana taken during the robbery. Appellant contends that Cobb and Jones used his gun to commit the murder and then returned it to him, along with some of the “stolen” marijuana, in order to “set him up” as the perpetrator of the crime.

Otherwise stated, appellant’s defense was that he was coerced by Jones and Cobb into participating in the robbery. He testified that about 5 p.m. on March 26, he was approached by Jones and Cobb, both of whom he had known for approximately one month, outside the RKO Theatre in Washington, D.C., and, at gunpoint, was forced into their car and compelled to go with them to Emory’s residence. Their interest in Emory, who was a friend of appellant, lay in the fact that he was a known dealer of marijuana and would therefore be a prime robbery victim. Appellant testified that he complied with their demands because they had a gun in his ribs and he was “in fear of being shot down.” At their insistence, appellant gave them his pistol. Appellant admitted that because of the coercion he assisted in the robbery, but did not participate in the murder and protested the violence.

According to appellant, he and the assailants left Emory’s apartment together by automobile and in the course of the drive Cobb and Jones threatened appellant’s life as well as members of his family. Appellant testified that he managed to save himself by convincing them that he would not tell the police about the incident. Appellant stated that he went to work shortly after he was released and was soon thereafter arrested. Upon his arrest appellant made a statement to the police essentially identical to his testimony at trial.

In support of his position that he had been coerced into participating in the crime, appellant attempted to offer the testimony of David Morgan, who was incarcerated with appellant’s co-defendant Jones in the Montgomery County Detention Center. Appellant’s trial counsel proffered that Morgan would testify as follows:

“During a period that they were out in the exercise or recreational yard, that he overheard Gregory Jones bragging that he had blown away Michael Emory or a Mike.
I don’t know what he actually said about the decedent in this case; but he had kidnapped, and that was the word that Mr. Morgan used, kidnapped Mr. Harris and took him to the location on Cheltenham Drive to help them find out where the individual who had the marijuana was located.”

The State objected to the admission of this statement, contending that it constituted hearsay and did not qualify under the admission against penal interest exception.

It is clear that Morgan’s proffered testimony as to Jones’ statement constitutes hearsay since it is an out-of-court statement offered in court to prove the truth of the matters asserted therein. Mutyambizi v. State, 33 Md. App. 55, 65 (1976). Appellant argues, however, that “Morgan should have been allowed to report Jones’ statement because it was made against Jones’ penal interest and because there was no reason to believe that it was collusive or frivolous.”

We glean from our review of the history of the declaration against interest exception to the hearsay rule that this exception traditionally was limited to declarations against pecuniary or proprietary interest. See Thomas v. State, 186 Md. 446 (1946), for a thorough review of the common law origins and development of the rule. The distinction between statements relating to penal matters and those relating to material ones lies in the belief that the admission of an acknowledgment of facts rendering one liable to criminal punishment would, unlike an acknowledgment of a debt, open the “door to a flood of perjured witnesses falsely testifying to confessions that were never made.” McCormick on Evidence § 278 (2d ed. 1972). A trend has arisen in recent years, however, to limit, if not abrogate, this distinction. 5 Wigmore, Evidence § 1477 (Chadbourn rev. 1974). To this effect, McCormick, supra, at 674, commented:

“Wigmore, [] however, is probably right in believing that the argument of the danger of perjury is a dubious one since the danger is one that attends all human testimony, and in concluding that ‘any rule which hampers an honest man in exonerating himself is a bad rule, even if it also hampers a villain in falsely passing for an innocent.’ Under this banner, saluted also by Holmes, J., in a famous dissent, a few progressive courts have relaxed the rule of exclusion of declarations against penal interest in particular situations or generally.” (Footnotes omitted.)

Maryland is one of the so-called “progressive” states that allows the admission of a declaration against penal interest, although some limitations have been placed thereon. In Dyson v. State, 238 Md. 398, 407 (1965), the Court of Appeals articulated the rule adhered to in this State:

“Although Maryland formerly followed the general rule that a penal declaration against interest of a third party was not admissible evidence, the later cases have established that a confession by one other than the defendant, that he committed the crime in question, should be received and considered by the trier of the guilt of the accused, unless it is clearly collusive, frivolous or otherwise obviously untrustworthy. Brady v. State, 226 Md. 422; Thomas v. State, 186 Md. 446; Wiggins v. State, 235 Md. 97, 103; Brennan v. State, 151 Md. 265; 23 Md.L.Rev. 178.”

We further observe that the determination of the trustworthiness of the out-of-court declaration is “entrusted in the first instance to the sound discretion of the trial judge.” Brady v. State, 226 Md. 422, 429 (1961).

The State argues that Jones’ declaration is lacking in trustworthiness because “[tjhere was absolutely no showing that Jones’ declaration was anything other than a boastful remark of one incarcerated individual to another.” Appellant, on the other hand, argues that there was no evidence of collusion, frivolousness or untrustworthiness. He contends that his statements to the police immediately after his arrest are consistent with Morgan’s proffered testimony, thus lending it an indicium of reliability. Moreover, appellant argues that Jones refused to testify in appellant’s behalf by invoking his rights under the fifth amendment and that the prosecutor informed the trial judge that he intended to call appellant as a State’s witness against Jones in his upcoming trial, all of which would tend to negate collusion between Jones and appellant.

In Dyson, the defendant was charged with rape. His primary defense was that one James Melvin had confessed to the police that he, not Dyson, had committed the rape in question. In attacking the trustworthiness of Melvin’s confession, it was adduced at trial “that there were a number of demonstrable errors, inconsistencies and improbabilities in Melvin’s confession.” In addition, “[i]t was also brought out that Melvin had been at Crownsville Hospital for mental patients and was an avid reader of newspaper accounts of crime.” Dyson v. State, supra, at 406. Nonetheless, the Court of Appeals concluded that “there was no evidence of collusion as to the Melvin confession and it was not on its face obviously untrustworthy ...,” id. at 408, and thus it was admitted.

When viewed by this standard, we can only conclude that the trial judge abused his discretion when he ruled that Jones’ prison-yard declaration was untrustworthy. The only argument put forth by the State indicating untrustworthiness in Jones’ declaration was that Jones was merely “bragging” about his criminal exploits. It is pellucid that this scant and speculative indication of untrustworthiness pales in comparison to that of Melvin’s in Dyson whose declaration was ruled to be admissible.

Although applied in a different context, the following words of Mr. Chief Justice Burger, speaking for the Supreme Court in United States v. Nixon, 418 U. S. 683, 709 (1974), are especially appropriate to the case sub judice:

“We have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence.”

Furthermore, the Supreme Court noted in Chambers v. Mississippi, 410 U. S. 284, 302 (1973), that “[f]ew rights are more fundamental than that of an accused to present witnesses in his own defense.” See also In Re Oliver, 333 U.S. 257 (1948).

Since we feel that a declaration against one’s penal interest, standing alone, has an inherent indicium of trustworthiness, cf., Merrick v. State, 283 Md. 1 (1978), it is our judgment that only in those cases where there is evidence that the out-of-court declaration is untrustworthy, frivolous or collusive should the jury be precluded from receiving and assessing the statement. To hold otherwise would serve to usurp the traditional role of the jury as the trier-of-fact and, concomitantly, deprive an accused of his right to due process under the law. See Chambers v. Mississippi, supra. In our view, appellant was thus deprived of this right at his trial below and, accordingly, we are compelled to reverse his convictions.

By virtue of our reversal of appellant’s convictions, we do not reach his remaining contentions.

Judgments reversed; case remanded for a new trial; costs to be paid by the County Council of Montgomery County.

      . Detective Green testified that the pillow was “no more than ten or twelve feet” from where appellant was seated.

      . Markow also testified that appellant protested the physical abuse of Emory.

      . Wigmore, supra, in fact has categorized as “barbarous” the rule prohibiting the admission of declarations against penal interests while allowing declarations against pecuniary and proprietary interests.

      . To invoke the declaration against penal interest exception, it must be shown that the out-of-court declarant was unavailable at the time of trial. Wilkins v. State, 11 Md. App. 113, 131 (1971). In this regard, a declarant’s “successful claim of privilege made him ‘unavailable’ within the intent of the exception to the hearsay rule.” Id See also McCormick, supra, § 280. The State does not contest that Jones became unavailable by exercising his right under the fifth amendment not to testify.

      . Compare Ragler v. State, 18 Md. App. 671, 675-76 (1973).


author: Liss, J.,

text:
    ROADWAY EXPRESS, INC. v. IRA B. GRAY
    [No. 1161,
    September Term, 1977.]

      Decided July 14, 1978.

    The cause was argued before Morton, Thompson and Liss, JJ.

      Raymond A. Richards for appellant.

      John J. Garrity, with whom were Feissner, Garrity & Beckman on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

In The Corsican, a biography of Napoleon by R. M. Johnson, the Emperor admonished an aide whom he had entrusted to deliver an important message: “Go, sir, gallop and don’t forget the world was made in six days. You can ask me for anything you like, except time.” We, like the Little General, are unable to grant the boon of time.

This action originated on June 8, 1976, when Ira B. Gray, appellee, a former employee of Roadway Express, Inc., appellant, filed a claim with the Workmen’s Compensation Commission for benefits allegedly due him by reason of an accidental injury arising out of his employment. In his claim Gray stated that the accident occurred between the 15th and 30th of June, 1974. He described the incident as follows: “Was helping maintenance man fix landing gears on trailer, I was in a stuped [sic] position pulling on something and it slipped and I reared up and hit the back of my head.” The appellee’s claim also stated that August 5,1974 was the first day he lost from work because of his injury and that he returned to his employment on February 8, 1975 and remained on the job until July 8, 1975, when he was compelled to stop work because of the onset of seizures.

The Workmen’s Compensation Commission, after accepting the employee’s claim, notified the employer that it had set a “consideration date” of July 1, 1976 and that it would pass an order on the basis of the evidence in the hands of the Commission if no request for hearing was received by that date. It was at this point that the employer first failed to note the inexorable passage of time. No request for a hearing was filed. On July 15, 1976, on the basis of the application of the employee for compensation benefits which represented the only information before the Commission, it passed an order finding that the claimant had sustained an accidental injury arising out of the course of his employment and awarded the appellee temporary total disability benefits at the rate of $102.80 per week beginning on. August 8,1974. A copy of that order was mailed to the employer and nothing was heard from it until August 31,1976 when it filed with the Commission a petition to rescind and/or modify the Commission’s order of July 15, 1976.

Medical reports filed with the Commission showed that the appellee had been treated at North Arundel Hospital on August 7, 1974 for severe headaches and vomiting. He was admitted to North Arundel Hospital on August 25, 1974, where his condition. was diagnosed as “Basilar Artery Aneurism with Hemorrhage.” He was transferred to London, Ontario where he underwent surgery on September 11, 1974. By October 13, 1975 the medical records indicated that he was suffering from a seizure disorder related to the condition, and surgery was performed. None of the records of the hospital contained any reference to a work related injury, but a subsequent medical report filed by the claimant indicated the basilar aneurysm developed from a sharp occipital trauma occurring after June 19, 1974, and rupturing on August 8, 1974.

In its petition to rescind the order of July 15, 1976 the employer gave as its reasons the following:

“1. The claimant failed to report the alleged accident as required by the Workmen’s Compensation Law of Maryland.
“2. The claimant failed to file with his claim form, medical reports as required by the Workmen’s Compensation Law of Maryland.
“3. There was no legally sufficient evidence before the Commission to permit it to pass an Order, other than the self-serving Employee’s Claim form.
“4. The interest of justice require that this case be set for hearing.”

It also requested that the Commission set the case in for a hearing and raised the following issues for decision at that hearing:

“(a) Is the employee’s claim for compensation barred due to his failure to report the alleged injury as required by the Workmen’s Compensation Law of Maryland?
“(b) Is the employee’s claim barred for failure to file medical reports as required by the Workmen’s Compensation Law of Maryland?
“(c) Is the employee’s claim barred for failure to file his claim within the time prescribed by the Workmen’s Compensation Law of Maryland?
“(d) Did the employee sustain an accidental personal injury arising out of and in the course of his employment?
“(e) If the employee did, in fact, sustain an accidental personal injury arising out of and in the course of his employment, on what date did said injury occur?
“(f) Is the claimant’s disability the result of an accidental personal injury arising out of and in the course of employment?
“(g) Such other and further issues as may be raised at the time of the hearing on this motion.”

A hearing on the motion to reconsider was held before the Commission on October 27, 1976, and on November 4, 1976 the Commission’s order of July 15, 1976 awarding the appellee compensation benefits was affirmed. The employer entered an appeal to the Superior Court of Baltimore City and the employee filed a motion to dismiss the appeal for lack of jurisdiction based upon the following reasons:

“1. That the appeal from the order of award was not timely filed in the lower court.
“2. That the appeal is not allowed by law and should be dismissed ... as the decision of the Commission to not vacate its previous decision on the same matter under Article 101, Section 40(c) is not appealable.
“3. That an appeal was not filed within the statutory period of thirty (30) days from the date of the final order in accordance with Maryland Rule B4.

On July 18, 1977, the employer filed an answer to the employee’s motion to dismiss the appeal for lack of jurisdiction and also filed a supplemental petition. In both the answer and the supplemental petition the employer alleged that the Commission’s refusal to vacate its order represented an abuse of its discretion. The matter came on for hearing before Chief Judge Anselm Sodaro sitting in the Superior Court of Baltimore City. He ruled that the refusal of the Workmen’s Compensation Commission to vacate its order was not appealable and further that the appeal from the order of the Commission of July 15,1976 was not timely filed. Under these circumstances the trial judge held that the Superior Court was without jurisdiction to entertain the appeal. It is from this ruling that the within appeal was (this time) timely noted.

Appellant presents three issues to be determined by this appeal which it states as follows:

“Did the trial court err in dismissing Appellant’s appeal on grounds of abuse of discretion from the refusal of the Workmen’s Compensation Commission to vacate its Order of July 15,1976 ?
“Was the refusal of the Workmen’s Compensation Commission to vacate its Order of July 15, 1976, an abuse of its discretion?
“Was the Commission’s Order of July 15, 1976 void?”

Appellee adds a fourth issue which he states as follows:

“Whether, after an employer has failed to file a timely appeal of a temporary total disability award, an order by the Workmen’s Compensation Commission denying an untimely filed request to reopen a case under Section 40(c) for reconsideration of an issue previously decided, is an appealable decision?”

We believe it is necessary for us to consider first the issue raised by appellee because a negative answer to that question would be dispositive of this case. The thrust of appellee’s argument is that the Commission’s refusal to reopen or vacate its previous order under the power vested in it by Maryland Code (1957, 1976 Cum. Supp.) Article 101, Section 40 (c) was not arbitrary and unreasonable and that the trial court was correct in determining that the date of the original order was the effective date for the determination of whether or not the appellant had exercised in a timely fashion its rights to review. If it had not, then the appeal had to be dismissed as the court would then have had no jurisdiction over the controversy. We agree with the trial judge that the appellant had not exercised its right to review within the time limits established by the statute and by the Maryland Rules and that the Superior Court, therefore, was without jurisdiction. We shall affirm.

The review of any final action of an administrative agency by a court where such review is specially authorized by statute is governed by the B rules of Chapter 1100 of the Maryland Rules of Procedure. Rule B4 a sets the time for filing a motion for review as 30 days from the date of the action appealed from. It is conceded that the employer received notice of the filing of appellee’s claim, that it also was notified that the claim would be considered on July 1, 1976 and that in the absence of a request for a hearing the Commission would pass an order on the basis of the information in the hands of the Commission on the consideration date. No request for a hearing or other means of raising issues was filed by the employer prior to the date of consideration. An order awarding temporary total compensation was filed on July 15,1976. The employer under Rule B4 a had 30 days from that date to seek review in the Circuit Court of the Commission’s order, but no order for appeal was filed. The employer gives as its excuse for the failure to file its appeal within the time allowed the statement that it was investigating the claim and that while it recognized that an appeal “would have entitled it to a trial de novo,” such an appeal “would seem to be a superfluous activity.”

The Court of Appeals, in Holland Mfg. Co. v. Thomas, 136 Md. 77, 79, 110 A. 209 (1920), a case involving the question of jurisdiction where an appeal was not timely filed, stated,

“This language is positive and mandatory, and we have no power to disregard it. It was evidently intended to secure expedition in the review of the decisions of the Commission, and to forbid the hearing of such appeals unless taken within the time limited.”

Appellant seeks to avoid the result of its failure to exercise its rights in a timely fashion by suggesting that the original order of the Commission was void because the appellee failed to abide by the requirements of the Workmen’s Compensation Law in that he failed initially to notify the employer of the accident and failed to file medical reports with his claim form as required by the statute. These allegations are, however, matters of defense which were available to the employer had he exercised his right to raise issues prior to the consideration date, or his right to request a hearing, or his right to appeal and have the case heard de novo — none of these rights were exercised in a timely fashion. To permit the appellant to raise these issues in a collateral proceeding would defeat the purpose of requiring appeals to be filed within a mandatory period.

In Gold Dust Corp. v. Zabawa, 159 Md. 664, 152 A. 500 (1930), the Court differentiated between the facts before it and those in Bethlehem Shipbuilding Corp. v. Simmons, 143 Md. 506, 122 A. 678 (1923), where the request was made to the Commission that it reopen a claim in order to consider new conditions arising from aggravation, diminution or termination of injury, when such questions had not previously been passed upon by the Commission. The Court stated that an appeal from the refusal of the Commission to reopen was available under those circumstances because of the continuing jurisdiction of the Commission to consider these matters. It made it clear, however, as is shown by the following quotation from Gold Dust, that this power in the Commission did not bear upon the right of appeal:

“As there is no limitation upon the number or times of applications for reopening, it would follow that, if an appeal may be allowed from refusal to reopen even where there is no change in the injury, there would be no ground for stopping short of allowing all cases past and future to be carried to the trial courts for review at any time.
“The provision . . . for continuing jurisdiction in the commission in all cases, and power to make from time to time such modification or change with respect thereto, as in its opinion may be justified, seems to provide nothing more than a power to reopen, and we do not see that it bears upon the right of appeal.
“The fact that additional testimony was produced before the commission, at its hearing on the motion to reopen, seems to the court not to render the decision any other than a decision against reopening. The decision would seem analogous to a refusal to grant a new trial upon newly discovered evidence.
“It results from these conclusions that the appeal from the commission’s ruling should have been dismissed in the court below, and that the judgment of the court should be reversed and the case remanded for the dismissal now.” Id. 159 Md. at 668-69.

In Robin Exp., Inc. v. Cuccaro, 247 Md. 262, 230 A. 2d 671 (1967), the Court of Appeals had before it a case in which the employer, in a situation analogous to Gold Dust and the case sub judice, appealed the Commission’s refusal to reopen the case under Code (1957) Article 101, Section 40 (c). The trial judge dismissed the appeal, holding:

“From the various authorities submitted by the employer, it is evident that there is a broad power given the Commission to reopen but the right of appeal from a refusal to reopen is limited to situations involving aggravation,, diminution, or termination of an injury [under Sec. 40 (b)]. This type of situation is not involved in the case at bar [which arises under section 40 (c)].” Id. 247 Md. at 263-64.

The Court, in affirming the lower court, applied the principles laid down in Gold Dust, supra, and said:

“If a court or administrative body reopens a case its second decision, be it the same or different from its previous decision, is a new holding; if it refuses to reopen, it decides only not to interfere with its previous decision but stands unimpeached as its original date.” Id. at 264.

In Cogley v. Schnaper and Koren Const. Co., 14 Md. App. 322, 286 A. 2d 819 (1972), we had before us a case in which a subcontractor attempted to attack collaterally a decision of the Workmen’s Compensation Commission from which no appeal had been taken. In refusing to permit such an attack we relied on the holding in Wors v. Tarlton, 234 Mo. App. 1173, 95 S. W. 1199 (1936), wherein it was stated:

“ ‘In this instance the record of the cause before the commission shows only that the claim was one by plaintiff, the employee, against the Illinois Terminal Company, his employer, for compensation for injuries received while ‘working on a flat car leveling off dirt’; and in its final award the commission found that plaintiff was entitled to recover for his accident ‘as provided in the Missouri Workmen’s Compensation Law.’ By virtue of such award the commission must be held to have resolved the question of its jurisdiction in its own favor [Morrison v. Term. R.R. Ass’n (Mo. App.) 57 S.W.2d 775, 776], and the face of the award, instead of disclosing a lack of jurisdiction so as to render the same void, purports instead to show proper jurisdiction in the commission in view of the recital that the award was rendered ‘as provided in the Missouri Workmen’s Compensation Law,’ thus indicating that the commission must necessarily have found that the case was not one exclusively covered by any federal law, else it could and would not have assumed jurisdiction over it. Moreover, no appeal was taken from the award, so that whether it was actually right or wrong upon the question of fact before the commission, it in any event became final and conclusive as to the matters adjudicated thereby, and is as impregnable to the present collateral attack made upon it as though it had been rendered by a court rather than by a mere statutory board of arbitrators.’ (Emphasis supplied).” Id. 14 Md. App. at 329-30.

Appellant has in its quiver one more arrow which it dispatches into the wild blue yonder but which falls, alas, to the earth without wounding its quarry. It seeks to avail itself of the provisions of Code (1957,1976 Cum. Supp.) Article 101, Section 56 (e) which provides in pertinent part as follows:

“A motion for rehearing may be filed within seven days from the date of the decision of the Commission, only upon grounds of error of law, or newly discovered evidence____ If a motion for rehearing is filed, the time within which an appeal can be taken from the decision shall commence from the time of the ruling by the Commission on the motion.” ■

The original order in this case was filed on July 15, 1976. A motion for rehearing was available to the employer for a period of seven days thereafter. The motion for rehearing was not filed until September 1, 1976. We think that the holding and rationale advanced by the Court of Appeals in Gold Dust Corp. v. Zabawa, supra, is controlling in this case. See: Charles Freeland and Sons, Inc. v. Couplin, 211 Md. 160, 126 A. 2d 606 (1956). In Gold Dust, a claimant, subsequent to his failure to file a timely appeal, petitioned the Commission to reopen the case. Upon the Commission’s refusal to modify or change its ruling, the claimant filed an appeal to the Superior Court of Baltimore City. The Court stated that the issue raised by the appeal was as follows:

“When a claim for compensation has been disallowed by an order of the State Industrial Accident Commission, on the ground that the workman did not sustain an accidental injury arising out of and in the course of his employment, and no appeal has been taken by the workman from that order and no notice of appeal given by him, within the period of thirty days limited in section 56 concerning appeals, can he then, upon application to the Commission for a reopening of the question, and a refusal of his application, prosecute an appeal within thirty days from that refusal?” Id. 159 Md. at 665.

In a comprehensive analysis of the problem, the Court stated:

“The refusal to reopen was a decision, of course, but it was only a decision not to interfere with a previous decision settling the merits of the claim. And it is regularly considered that a decision declining to interfere with a previous decision is not one intended to be included under a general statutory allowance of appeal from any decision____ ‘There is a perceptible analogy between an application for a rehearing and a motion for a new trial in a court of law; and in either case the party affected by an adverse ruling cannot invoke the interposition of an appellate tribunal for the correction of supposed errors.’ ” (Citations omitted). Id. 159 Md. at 666-67.

Appellant seeks to avoid the effect of the authorities we have quoted by suggesting that the refusal of the Workmen’s Compensation Commission to vacate its order of July 15,1976 was an abuse of its discretion. It contends that the Commission’s action was “not the exercise of will but perversity of will, not an exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias,” Wendel v. Swanberg, 384 Mich. 468, 185 N.W.2d 348, 351 (1971), and that its abuse of discretion “implies not merely error of judgment, but perversity of will, passion, prejudice, partiality or moral delinquency,” Arvidson v. Bd. of County Commissioners, 269 N.E.2d 432, 438 (C.C.P., Ohio 1971), or an abuse of discretion which “implies an unreasonable, arbitrary and unconscionable attitude on the part of the court,” State v. Fellows, 352 N.E.2d 631, 633 (Ohio 1975).

Appellant concedes that as a general rule a refusal by the Commission to vacate a previous order is not reviewable on appeal. That rule is based on an analogy between the Commission’s refusal to reopen a claim and a trial court’s denial of a motion for a new trial. It suggests, however, that this general rule is subject to the caveat that where there has been a clear abuse of discretion by an administrative body or a trial court, a refusal to reopen a claim or grant a new trial might be reviewable on appeal. It contends that the Commission’s refusal to consider the alleged failure of the employee to comply with several requirements of the Workmen’s Compensation statute amounted to a denial of substantial rights of the employer and, therefore, was an abuse of discretion.

We do not agree. All of these alleged violations were matters of defense which were available to the employer from the date the claim was filed. To permit the employer — who failed to interpose a defense before the order awarding temporary total compensation was issued, who failed to timely note an appeal and who failed to file a motion for reconsideration within the seven days allowed — to raise issues of defense for the first time at the trial court level and to appeal to this Court from an adverse decision, would be manifestly improper. In effect, the appellant pleads with us “Backward, turn backward, 0 Time in your flight,/ Make me a [litigant] child again just for tonight.” We decline!

Judgment affirmed.

Costs to be paid by appellant.

      . Elizabeth Akers Allen (1832-1911) “Rock Me to Sleep” (I860) at 1.


author: Moylan, J.,

text:
    JOSEPH E. ROBERT, SR., Broker et al. v. CONSTRUCTION GENERAL, INC. et al.
    [No. 1167,
    September Term, 1977.]

      Decided July 14, 1978.

      The cause was argued before Gilbert, C. J., and Moylan and Mason, JJ.

      Walter H. Madden, with whom were Madden & Murphy on the brief, for appellants.

      DavidR. Kuney, with whom was Warren K. Kaplan on the brief, for appellees.
   Moylan, J.,

delivered the opinion of the Court.

The appellant, Joseph E. Robert, Sr., is a licensed real estate broker in Maryland, the District of Columbia and Virginia. In 1975, he was the president of the Robert Real Estate Exchange, Inc. (REX), which was licensed in the State of Maryland. The appellee, Construction General, Inc. (CGI) is a California corporation whose main office is in Montgomery County.

In 1974, CGI negotiated a $6,800,000 construction loan with Mellon Bank, N. A. of Pittsburgh, Pennsylvania, to build a condominium project in Arlington County, Virginia, known as The Carlyle. In return, CGI executed a promissory note in the amount of $6,800,000 plus interest in favor of Mellon Bank. The note was guaranteed by Bernard Lubcher, the president of CGI, and his wife and by Jack Y. Matthews, the secretary of CGI. The note was secured by a first lien deed of trust on The Carlyle in favor of Mellon Bank.

Despite the building being 80 percent complete as of the spring of 1975, CGI had little success in selling the individual condominium units in The Carlyle. Asa result, in June, 1975, Mr. Lubcher began discussing with Mr. Robert, who had been referred to him as an expert in selling distressed condominium properties, the selling of individual condominium units at The Carlyle. Facing cost overruns of approximately $1,000,000, on October 8, 1975, Mr. Lubcher on behalf of CGI entered into a written agreement with Mr. Robert on behalf of REX whereby REX was “granted the exclusive right to sell The Carlyle for a period of one (1) year commencing September 29, 1975 and ending September 30, 1976.” CGI agreed to pay REX a net commission of 3 percent of the sale price of the units, apart from any cooperating brokerage commission. REX agreed to staff The Carlyle with competent personnel six days a week, to coordinate walk-thrus, move-ins and upgrades with the developer’s agent or contractor, and to aid in the marketing, promoting and merchandising of the project. The agreement provided that either party would have the right to cancel the agreement at any time during the term thereof upon 30 days written notice. During the next six weeks, REX submitted eleven contracts of sale on individual condominium units to CGI.

Meanwhile, during 1975 it had become apparent to Mellon Bank that the condominium project was facing extreme difficulties. Unknown to CGI, the bank through its assistant vice president, John G. Roch, began negotiations with Stuart A. Bernstein, one of the ultimate purchasers, to take over the project. Mellon Bank had previously financed one of Mr. Bernstein’s other condominium projects. By late summer, the discussions with Mr. Bernstein and with John J. Mason, the other purchaser, revolved around making The Carlyle a rental project.

On November 17 and 18, 1975, Mr. Lubcher requested Mellon Bank to advance additional funds to cover the cost overruns. The bank, however, refused any additional funding and advised Mr. Lubcher it was considering its alternatives, including foreclosure or taking a deed in lieu of foreclosure. On Friday, November 21, Mr. Lubcher told Mr. Robert that CGI had been unable to work out negotiations for an extension of the loan or an increase in the loan and that he had been advised by his attorneys to close the building down to put a squeeze on Mellon Bank to give them additional money. Mr. Robert persuaded Mr. Lubcher, nevertheless, to keep the building open over the weekend. On Monday, November 24, however, Mr. Lubcher told Mr. Robert to turn in the key to the project, which he did.

As of November 21, there had been no approvals of credit on any of the eleven contracts and, under the agreement, REX and Mr. Robert were not as yet entitled to any commissions. At their meeting on that day, Mr. Lubcher offered Mr. Robert $6,000 in settlement for his services. Mr. Robert told Mr. Lubcher that the commissions on the contracts amounted to $16,846.50. He asked for $9,000. He testified at the trial, however, that this sum was only intended by him to cover his son’s services at The Carlyle and not to settle his claim for his commissions. Mr. Robert agreed to give back the deposits to each of the eleven prospective purchasers of condominiums and get releases from them. This he subsequently did. When Mr. Lubcher several days later indicated to Mr. Robert that he would have to sign a release to obtain the $9,000 check, Mr. Robert refused to sign a release. He never received the check.

On November 22, at the request of the Mellon Bank, Mr. Bernstein and Mr. Mason toured the building. They had been to the building on a previous occasion when Mr. Robert’s son was present. This was the first time Mr. Robert, however, met the two gentlemen. He showed the men the building and answered their questions. The total visit lasted approximately 30 minutes. Mr. Robert told Mr. Lubcher that the men seemed very interested in the building and asked him whether or not he was trying to work a deal with the men for the sale of the building. Mr. Lubcher told him no — that he did not even know the men.

On November 26, CGI, Mellon Bank, Mr. and Mrs. Lubcher and Jack Matthews entered into an Agreement of Sale whereby CGI agreed to convey The Carlyle to the designee or nominee of Mellon Bank. In return, Mellon Bank agreed to release CGI and the guarantors from their liability on the promissory note. Mellon Bank, on the same day, designated the Carlyle Limited Partnership as the grantee and a deed was prepared conveying the property to the Carlyle Limited Partnership. Mr. Lubcher testified that the negotiations for this transfer were all worked out between CGI and Mellon Bank on November 26.

Mellon Bank thereafter finalized its transactions with Stuart Bernstein and John Mason. On December 2, the deed conveying the property to the Carlyle Limited Partnership was recorded. On the same day, the Mellon Bank conveyed its interest in the Carlyle Limited Partnership to Mr. Bernstein and Mr. Mason by the execution of a power of attorney for service of process, a modification of deed of trust and a promissory note modification agreement.

Mr. Lubcher testified that as of November 24 he had no idea that the Mellon Bank had an assignee who was willing to buy the building. He, in fact, inquired of Mellon Bank on November 26 who the assignees were going to be. They told him they did not know — that they had several options open to them. He testified that he first learned that Mr. Bernstein and Mr. Mason were the assignees sometime in January, 1976.

Mr. Lubcher testified that he wrote to Mr. Robert on December 3,1975, asking him to come to his office to pick up the $9,000 check and sign the release. Mr. Robert never came to the office. Mr. Lubcher also attempted to reach Mr. Robert by telephone almost daily for two weeks with no success. Mr. Lubcher finally heard from Mr. Robert through his attorney in January, 1976, when the demands which resulted in this suit were made.

On June 4, 1976, Mr. Robert sued the appellees, CGI and its officers individually — Mr. Lubcher, Charles Walsh, and Mr. Matthews, the president, vice president, and secretary, respectively — for a broker’s commission on the sale of the entire project. The appellees demurred to the declaration, and the demurrer was sustained with leave to amend.

Mr. Robert then filed suit individually and on behalf of REX against the appellees in an eleven-count declaration alleging breach of contract and fraudulent concealment of the sale of The Carlyle. The court sustained the appellees’ demurrer to Counts V through VIII and to Count XI without leave to amend. A demurrer to Count IX was sustained with leave to amend. An amended declaration was then filed as to Count IX only, and a demurrer to that amended count was denied.

The case proceeded to trial on Counts I, II, III, IV, IX, and X. At the close of the appellants’ case the court granted a directed verdict for the defendants/appellees as to Counts III and IX which charged, respectively, fraud and deceit against REX and Robert individually. At the close of all of the evidence, a directed verdict was granted in favor of CGI on the remaining counts. The appellants appeal from the sustaining of the demurrer to Count VIII and the granting of directed verdicts as to the remaining counts.

The appellants contend first of all that the contract of October 8, 1975, gave REX the exclusive right to sell The Carlyle and that as an exclusive right to sell agreement as opposed to an exclusive listing agreement, CGI was prevented from selling the property both personally and through another broker without incurring liability for a commission to REX, regardless of whether REX was the procuring cause of the sale. The appellants contend further that the deed in lieu of foreclosure was a sale entitling REX to a commission under an exclusive right to sell agreement.

It is unnecessary to discuss whether the deed in lieu of foreclosure constituted a sale. We will assume for the sake of argument that the conveyance here was a sale, since we think the court was correct in ruling that the parties did not intend that CGI relinquish its implied right to sell the project.

12 Am.Jur.2d, Brokers, § 226, explains the distinction between an exclusive agency to sell and an exclusive right of sale:

“With respect to the right of a broker to compensation on a sale negotiated by the employer without the aid of the broker, a distinction is frequently raised between an exclusive agency to sell and an exclusive right of sale. It is held that where an exclusive agency is given the broker, the owner may still sell the property without liability to the broker unless the broker has procured a purchaser able and willing to buy prior to such time. The right of the owner of the property to sell is implied in such an agency. The only effect of such a contract is to prevent the owner from placing the property in the hands of another agent.
On the other hand, where a broker is given an exclusive right to sell property, as distinguished from an exclusive agency, he is held entitled to the agreed commission, or at least damages, when a sale is made by the owner, and it is immaterial that he was not the procuring cause thereof, provided, however, that the employment contract is supported by consideration and is not a mere unilateral offer, and provided also, according to some cases, that the broker has produced a ready, able, and willing purchaser or can show damages.”

For an owner of property to relinquish his right to sell his property, the brokerage contract must provide so in unequivocal terms or by necessary implication. 12 Am.Jur.2d, Brokers, § 227, states:

“An absolute exclusion of an owner’s right to sell his property on his own efforts, without the aid of any broker, can be effected only by a contract so providing in unequivocal terms or by necessary implication. Where any ambiguity exists, the courts favor an interpretation protecting the owner, especially where the contract was drafted by the broker himself.
In determining whether a real-estate broker’s contract excludes the owner’s right to sell, the use of the words ‘exclusive agency’ or ‘exclusive sale’ is not conclusive, but, as in other cases involving judicial interpretation, all the circumstances must be considered. The fact that the broker’s contract of employment expressly provides that the broker has the exclusive right of sale has not in all cases been considered to negative the right of sale by the owner without liability to the broker. A contract granting a broker the ‘exclusive sale' of property or appointing him the exclusive agent is not sufficient to exclude an owner’s right of sale himself during the contract.”

In interpreting the contract between REX and CGI, the lower court ruled, as a matter of law, that the parties did not intend that the contract cover a sale of the entire project and that, even if they did, the contract did not contemplate that CGI relinquish its implied right to sell the property:

“[The contract] contemplated that REX was going to staff the Carlyle with personnel six days a week to sell condominiums; that they were to process the sales contracts which had to contemplate only condominiums; that they would coordinate walk-throughs, move-ins, upgrades with whomever was purchasing a condominium unit; and that they would provide their expertise to the developer and the ad agency in marketing, promoting, and merchandising of the project; and that the project referred to the condominium units and that the parties never contemplated prior to October the 8th, 1975, when they entered into this agreement that there would be a ‘sale’ of the entire project, the entire Carlyle in which Mr. Robert and his company would participate, much less a deed back in lieu of foreclosure.
The Court also holds, as a matter of law, that even if it were contemplated that this might be a sale of the entire unit, the Court holds, as a matter of law, that in the State of Maryland, despite the fact there are no reported cases in Maryland to this effect, the Court believes the better weight of authority is to the effect that a real estate owner always has the right to sell his own property directly himself unless there is a provision in the sales contract between himself and the broker, unless there is an expressed prohibition which says that even if the owner sells the property he nonetheless must respond to the broker for a commission.”

We see no reason to disturb the court’s interpretation of the contract. The brokerage contract prepared by Robert and REX provides that REX would be granted the “exclusive right to sell The Carlyle.” The contract then discusses commissions in terms of a certain percentage of the sale price of the individual units and discusses the advertising and marketing of units. The contract is completely silent, furthermore, as to the owner’s right to sell the property without liability for a commission. There is no specific unequivocal language which expressly negatives CGI’s inherent right to sell the property nor is there language from which this could be implied. We agree that the employment of the words “exclusive right to sell” is not determinative and that even if a sale of the entire project were contemplated by the contract, these words were not here intended to relinquish CGI’s implied right as an owner to sell its property. See Annotation, Exclusive Right to Sell and Other Terms in Real Estate Broker’s Contract as Excluding Owner’s Right of Sale, 88 A.L.R.2d 936. The lower court was correct in directing a verdict for GGI and against REX on Count I.

The appellants argue in the alternative that even if CGI did not relinquish its implied right to sell the property, it is, nevertheless, liable to REX for commissions because REX was the procuring cause of the sale. They rely on Cowal v. Marietta, 216 Md. 222, which held that even slight services of a broker, if they, in fact, are the procuring cause of the sale, are sufficient to entitle the broker to commissions. In directing a verdict for CGI on Count II and against REX, the lower court ruled specifically as to this claim:

“The Robert Real Estate Exchange, Incorporated also says as an alternative theory on which it should collect that it was the procuring broker in this case; that it procured Mr. Bernstein and Mr. Mason as purchasers under what they consider a whole ball of wax theory; that in reality this is not a sale from the Construction General, Inc., to the Mellon Bank, but it is a sale from Construction General, Inc., to Bernstein and Mason, who are in effect the new Carlyle Limited Partnership; and that because they were the procuring brokers of Mason and Bernstein that therefore on the theory of a procuring broker they are entitled to a commission on the 7.6 million dollars roughly that Mr. Bernstein and Mr. Mason ultimately obligated themselves to pay to the Mellon Bank, and the Court says as a matter of law that they were not the procuring agent so far as Mason and Bernstein are concerned but that it was totally an accident that occurred; namely, that Mr. Robert, Jr., happened to be on the building at the time Mr. Mason and Mr. Bernstein went to the building and that the procuring agent, if there really was one, was the Mellon Bank, but that nonetheless there was no contractual relationship between Mr. Robert and his company and the Mellon Bank so that unless the Court were to allow you to believe or to find that there was a whole ball of wax between Construction General and the Mellon Bank and that Construction General sold to Mason and Bernstein that they could not be entitled to a finder’s commission on that because the Court believes that there is no credible evidence that there was any relationship whatsoever between Construction General, Inc., and Mason and Bernstein that will allow you to bridge the gap between the sale, if there is one, between Construction General, Inc., and Mellon Bank and then Mellon Bank to Mason and Bernstein.”

We find Co wal to be completely inapposite and agree with the ruling of the court that there was a complete dearth of evidence from which the jury could find that the appellants were the procuring cause of the sale. Mr. Bernstein testified that it was Mellon Bank’s assistant vice president, John Roch, who first discussed The Carlyle with his partner and him in the spring of 1975. The Mellon Bank was financing another of Mr. Bernstein’s and Mr. Mason’s projects. That summer, Mr. Roch asked Mr. Bernstein and Mr. Mason whether they would be interested in taking over The Carlyle. They told him they would be interested. It was only when they went to look at the building that they met Mr. Robert and his son. Mr. Bernstein testified that they settled on the property in the latter part of 1975 and that prior to that time they had no negotiations whatsoever with Mr. Lubcher, Mr. Walsh, Mr. Matthews, or anyone else from CGI. Viewing the evidence in the light most favorable to REX, there was no evidence that Mr. Robert or REX had any effect whatsoever on the negotiations between Mellon Bank and Mr. Bernstein and Mr. Mason or on the ultimate transfer of The Carlyle from CGI to Mellon Bank by deed in lieu of foreclosure and then to the Carlyle Limited Partnership. See Hampton Park Corporation v. T.D. Burgess Company, Inc., 270 Md. 269.

The appellants’ fourth contention is that the court incorrectly sustained CGI’s demurrer to Count VIII of their declaration. The appellants claim that Count VIII is virtually the same as Count II except that the claim for a broker’s commission based on the procuring cause of the sale is made by Joseph E. Robert, Sr., individually while in Count II the claim is made on behalf of REX. Appellants acknowledge that “while there may be but one recovery under the procuring cause theory, this does nothing to change the fact that both Counts II and VIII of the amended declaration were well pled.” The contention, however, is moot. In directing a verdict for CGI, the lower court properly found that neither Mr. Robert nor REX was the procuring cause of the sale.

At the close of the plaintiffs-appellants’ case, the court directed a verdict for CGI and its officers on Counts III and IX, which charged fraud and deceit against REX and against Robert individually. The gist of the counts was that Mr. Lubcher, on behalf of CGI, falsely represented to Robert and REX that the appellees were being forced to turn the building back to Mellon Bank and that the contracts procured by the appellants would, therefore, have to be cancelled and the efforts to sell additional units terminated. The appellants alleged that these representations were deliberately calculated to conceal the “sale” of the building and prevent the appellants from claiming their just commissions. They alleged that these representations were false, because the appellees were conveying the property back to Mellon Bank for good and valuable consideration including an unconditional release of CGI and the individual guarantors. The appellants further alleged that the appellees Matthews and Walsh cooperated and actively participated in the fraud by not advising the appellants of the falsity of the representations.

The appellants’ claims of fraud were completely unsupported by the evidence. Even without considering the other essential elements of an action for fraud and deceit (see James v. Weisheit, 279 Md. 41), there was a complete lack of evidence of a false representation of a material fact by the appellees or of a fraudulent concealment. On the contrary, Mr. Robert was fully advised as to all material facts. He knew the situation with The Carlyle at the time the brokerage agreement was executed. He knew the project was in financial distress. He knew that Mr. and Mrs. Lubcher and Mr. Matthews were the individual guarantors. That Mr. Lubcher’s optimistic assurance to Mr. Robert in June, 1975, that The Carlyle would not be foreclosed upon proved incorrect did not amount to a false representation.

From September to November, 1975, Mr. Robert was at all times advised of The Carlyle’s worsening financial situation. He knew that CGI was facing cost overruns on the project, that it needed additional funds to complete the project, and that Mellon Bank refused to grant additional funding or extend the mortgage, as a result of which The Carlyle was forced to close. CGI was in default of its mortgage and when it ultimately conveyed the property to Mellon Bank, it was by deed in lieu of foreclosure. There was not a scintilla of evidence that CGI and Mellon Bank arranged a “sale” of The Carlyle to Bernstein and Mason. The evidence, on the contrary, later disclosed that the negotiations between CGI and Mellon Bank and those between Mellon Bank and Bernstein and Mason were distinct and separate.

Apart from seeking recovery on the express contract, REX also sought to recover under the common counts (Count IV) for its services on a quantum meruit basis. There is no question that the appellants were prevented from earning their commissions on the sale of the eleven condominium units, 50 percent of which was payable upon issuance of a credit commitment and the balance upon settlement, by the default of CGI on its mortgage to Mellon Bank and by the subsequent deed in lieu of foreclosure which was executed. Contrary to the lower court’s ruling, we, likewise, feel that Robert’s efforts in obtaining releases from the eleven prospective purchasers did not relinquish any claim for his services. Robert testified that although CGI had not yet signed any of the contracts, he obtained the releases to protect his license. Whatever meritorious claim, however, the appellants might have against CGI for its inability to consummate the transactions involving the eleven contracts of sale is defeated by the fact that REX was not a licensed broker in the State of Virginia. Having examined the applicable law, we feel that the appellees’ argument in this regard is well taken.

Regarding real estate brokerage contracts, the general rule is that the validity and enforceability of the contract is governed by the law of the state where the contract was made, that is, the state where the last act necessary to make it a binding agreement took place. As to the distinction between a unilateral and a bilateral contract, see 2 Beale, Treatise on the Conflict of Laws, § 323.2, “Informal Contract to Compensate or Reimburse Agent.” Where, however, a brokerage contract is made in one state but its performance is clearly contemplated in another state, the law of the place of performance governs the validity of the contract. If the contract is invalid under that state’s laws, for example for failure of the broker to obtain the required license, it will be unenforceable in the state where the contract was made even though no law of that state was violated. Annotation, Conflict of Laws as Regards Brokerage Contracts, 159 A.L.R. 266; 12 C.J.S., Brokers, §§24 and 67.

The contract here was executed in Maryland. REX was duly licensed as a real estate broker in Maryland. The contract, however, provided for the sale of condominium units at The Carlyle in Arlington, Virginia. It provided that REX would staff The Carlyle with competent personnel six days a week, that it would coordinate walk-thrus, move-ins, upgrades, etc. with the developer’s agent or contractor, that it would aid in the marketing, promoting and merchandising of the project, and that it could deal in the sale of carpet for installation in the units. The nature of the contract, we feel, was such that Virginia was clearly contemplated as the place of performance. As such, REX would have to comply with any licensing requirement of Virginia to entitle it to any commissions.

Va. Code, § 54-749 (1974) provides:

“It shall be unlawful for any person, partnership, association or corporation, to act as a real estate broker, real estate salesman, or rental location agent or to advertise or assume to act as such real estate broker, real estate salesman, or rental location agent without a license issued by the Virginia Real Estate Commission. No partnership, association or corporation shall be granted a license, unless every member or officer of such partnership, association or corporation, who actively participates in its brokerage business, shall hold a license as a real estate broker, and unless every employee who acts as a salesman for such partnership, association or corporation shall hold a license as a real estate salesman; provided, however, that a person who holds a license as a real estate broker may act as a salesman for another real estate broker.”

The Virginia Supreme Court of Appeals has interpreted this statute as a police regulation for the protection of the public. Contracts made in violation of it therefore are illegal and void. Massie v. Dudley 3 S.E.2d 176 (Va. 1939).

REX was not licensed in Virginia. Mr. Robert, however, was licensed in that state. The Supreme Court of Appeals of Virginia, nevertheless, has made it clear that the license of an officer of the corporation does not confer on the corporation the right to engage in business. Hancock Co. v. Stephens, 14 S.E.2d 332 (Va. 1941). To like effect, Virginia Real Estate Commission, Rules and Regulations (Nov. 2, 1974) POR 9-107, provides in pertinent part:

“Every partnership, association or corporation must secure a separate and distinct real estate broker license before transacting business as a real estate broker. This license is separate and distinct from the individual broker license required of each partner, each associate, and each officer of the corporation who is active in the brokerage business.”

Since REX, therefore, would be barred from recovering on the express contract here because it was illegal and void, it also is barred from recovering on any quantum meruit basis. Massie v. Dudley, supra.

Robert is also barred from recovering individually based on the cooperating brokerage commission specified in the contract. State Realty Co. v. Wood, 57 S.E.2d 102 (Va. 1950).

Judgment affirmed; costs to be paid by appellants.