text:
    VELMA E. CARTER v. ALLEN, SON & COMPANY, INC. et al.
    [No. 126,
    September Term, 1975.]

      Decided November 4, 1975.

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

      Bernard Brager for appellant.

      Raymond A. Richards, with whom were Rollins, Smalkin, Weston, Richards & Mackie on the brief, for appellees.
   Menchine, J.,

delivered the opinion of the Court.

Velma E. Carter (claimant) and Allen, Son & Company, Inc. and Casualty Reciprocal Exchange (employer and insurer) agree that claimant sustained an accidental injury arising out of and in the course of her employment, and that she sustained a permanent partial disability of 50% industrial loss of use of her body under § 36 (4) of Article 101 of the Annotated Code of Maryland, and thereby became entitled to the compensation benefits provided by that subsection of the compensation law. They agree also that the extent of her permanent partial disability entitles her as well to the additional compensation benefits provided by § 36 (4a) for “serious disability” as the same was enacted by Ch. 446 of the Acts of 1970. That subsection as thus enacted reads as follows:

“(4a) — Serious disability. — A person who, from one accident, receives an award of compensation for a period of two hundred and fifty (250) weeks or more under subsections (3) or (4) or a combination of both, is thereby considered to have a serious disability; except any award for disfigurement or mutilation under subsection (3)(f) of this section shall not be considered in the determination of a serious disability. The weeks for such award shall be increased by one third (computed to the nearest whole number); and the compensation shall be for sixty-six and two-thirds per centum of the average weekly wages, in no case to exceed sixty-five dollars ($65.00) per week and not less than a minimum of twenty-five dollars per week unless the employee’s established weekly wages are less than twenty-five dollars per week at the time of the injury, in which event he shall receive compensation equal to his full wages. This subsection, to the extent of any inconsistency, prevails over subsection [subsections] (3) and (4); but otherwise subsections (3) and (4) apply to persons covered by this subsection. Provided, however, that any additional compensation for permanent partial disability on a petition to reopen shall not increase the amount of compensation previously awarded and actually paid.”

Here their agreement ends.

Under the recited agreed circumstances the Workmen’s Compensation Commission (commission) passed its award requiring employer and insurer to “pay compensation for permanent partial disability at the rate of $58.67 payable weekly * * * not to exceed the sum of $21,645.00.” Employer and insurer appealed to the Superior Court of Baltimore City. On that appeal, employer and insurer sought and were granted summary judgment by which the award of the commission was corrected, requiring employer and insurer to “pay compensation for permanent partial disability at the rate of $58.67, payable weekly * * * not to exceed the sum of $19,537.11.” Claimant has appealed to this Court.

It will be observed that the sole difference between the commission’s award and the trial court’s corrected award is the amount of the ultimate sum payable to claimant, i.e., $21,645.00 by the commission; $19,537.11 by the trial court.

Resolution of the dispute requires determination of the meaning and effect of Article 101, § 36 (4a), supra, as that subsection was enacted in 1970. Examination of the legislative and judicial background of the subsection will aid in its interpretation. Ch. 446 of the Acts of 1970, by which the new § 36 (4a) was enacted, also had repealed former § 36 (3a) and § 36 (4a) of Article 10.1 as the same initially had introduced the “serious disability” benefit as a totally new concept of workmen’s compensation, the constitutionality of which has been recognized.

There can be no doubt of the legislative intent in the passage of the 1970 legislation whereby § 36 (3a) and § 36 (4a) were repealed and the new § 36 (4a) enacted. The former subsections by which the new concept of “serious disability” had been initiated, had become the subject of litigation culminating in the decision in Barnes v. Ezrine Tire Co., 249 Md. 557, 241 A. 2d 392 (1967). In Barnes, an injured workman contended that the two subsections must be given cumulative effect even though the disability under one of them did not, standing alone, qualify independently for the allowance of “serious disability” benefits. The contention was rejected, the Court saying at 562 [395]:

“The arguments made by the claimant fly in the face of the legislative intent. Chapter 322 was enacted ‘to create certain new categories [emphasis ours] of persons having a serious disability.’ Subsection 3a sets forth the conditions necessary for an injury to qualify as a serious disability under 36 (3) relating to specific injuries. Likewise, subsection 4a sets forth the conditions necessary to qualify as a serious disability under 36 (4) concerning other injuries. In so doing, the legislature intentionally created two new categories. Had the legislature intended that 3a and 4a should be read together, it undoubtedly would have enacted only one additional subsection to § 36 with regard to serious disabilities. Furthermore, the qualifying conditions under 36 (3a) and 36 (4a) are not identical. In order for a claimant to qualify for a serious disability award under 3a, he must have been awarded compensation for 175 weeks or more under 36 (3). And in order for him to qualify under 4a, the claimant must have been awarded compensation for 200 weeks or more (i.e., an award equal to 40% or more of $12,500 at $25 a week). There is therefore no basis for combining a nonqualifying award under one subsection with a qualifying award under the other subsection so as to make both of them qualify. We have heretofore held that injuries not specifically named should be treated independently from those which are specifically named. Coca-Cola Bottling Works v. Lilly, 154 Md. 239, 140 Atl. 215 (1928). For the same reason, 36 (4a) should likewise be separately considered.”

Passage of Ch. 446 of the Acts of 1970 followed the decision in Barnes.

It is patent that the new subsection, combining the two prior subsections into one, was a legislative response to that decision. The new legislation made clear that the full actual disability of a workman must be considered in the determination of “serious disability,” whether it was the product of scheduled specific injuries under § 36 (3) or to the body as a whole under the “other cases” provisions of § 36 (4) or to a combination of both. The new § 36 (4a) made no other change of substance.

The proper formula for calculation of the number of weeks of compensation benefits payable under § 36 (4) for 50% loss of use of the body is as follows:

50% X $ 17,500.00 -j- $ 35.00 = 250 weeks

(Disability) (Maximum “Other (Weekly benefit

Cases” Award) under “Other Cases”)

See Barnes v. Ezrine Tire Co., supra, at 562 [395].

The formula for calculation of the additional number of weeks of compensation for “serious disability” is specifically set forth in § 36 (4a), i.e., “The weeks for such award shall be increased by one third (computed to the nearest whole number) * * *.”

In the subject case, accordingly, it is plain that the weeks of compensation benefits for her permanent disability total 333.

The appellant and the appellees agree with this calculation of the number of weeks from which the ultimate sum of compensation benefits will be computed, but differ as to the formula by which the latter figure is to be determined.

Claimant contends that the 333 weeks of compensation benefits should be multiplied by the sum of $65.00 weekly, the maximum allowance payable under § 36 (4a) or $21,645.00. Claimant contends that she should be paid this ultimate total sum at the rate of $58.67 weekly (two-thirds of her average weekly wage). The effect of such a course would cause the claimant to receive weekly benefits of $58.67 for a period more than 35 weeks longer than the basic 333 week period for which her “serious disability” had been determined under the agreed formula. Employer and insurer, on the other hand, contend that the ultimate sum payable to the claimant must be calculated by multiplying the 333 weeks of compensation benefits to which she is entitled under the provisions of §§ 36 (4) and 36 (4a) by the sum of $58.67 (two-thirds of her average weekly wage), or the sum of $19,537.11. The commission adopted the position of the claimant. The trial court adopted the position of the employer and insurer. We shall affirm the trial court.

The language of § 36 (4a) is clear and unambiguous. We find nothing in it to indicate that the maximum weekly sum payable under its provisions was intended universally to serve as the determining factor in computing the amount of the ultimate sum payable to an injured workman. The $65.00 figure constitutes nothing more than the outside limit of the weekly benefits payable for “serious disability.” It should be utilized in computation of the ultimate monetary benefits only when two-thirds of the average weekly wage of a particular workman equals or exceeds that maximum benefit.

Claimant argues that the formula by which the commission apparently computed the ultimate compensation award has been employed by it since enactment of the “serious disability” concept and that a settled construction by the commission is to be given weight upon appeal, citing Congoleum Nairn v. Brown, 158 Md. 285, 290, 148 A. 220, 222 (1929). We find no such settled construction in this record. That doctrine must, in any case, yield to the clear language of a statute. Symons v. R. D. Grier & Sons, 10 Md. App. 498, 501, 271 A. 2d 398, 399-400 (1970). We conclude that the subject case falls within the rule declared in Bouse v. Hutzler, 180 Md. 682, 687, 26 A. 2d 767, 769 (1942):

“Where the language is clear and explicit, and susceptible of a sensible construction, it cannot be controlled by extraneous considerations. No custom, however long and generally it has been followed by officials, can nullify the plain meaning and purpose of a statute.”

Judgment affirmed.

Costs to be paid by appellant.

      . At the time of the accidental injury in the subiect case § 36(4) provided in pertinent part that “ * * * the commission shall determine the portion or percentage by which the industrial use of the employee’s body was impaired as a result of the injury * * * and shall award compensation in such proportion as the determined loss bears to the sum of $17,500.00, the said compensation to be paid weekly * * * in no case to exceed thirty five dollars per week * * (Ch. 446 Acts 1970)

      . We note that § 36 (4a) as enacted by Ch. 446 of the Acts of 1970 was amended by Ch. 639 of the Acts of 1975. We have given no consideration to the meaning and effect, if any, of the latter amendment on the issue confronting us, since the subject case is controlled solely by the 1970 enactment. See Zebron v. American Oil Co., 10 Md. App. 308, 270 A. 2d 339 (1970).

      . Introduced into Workmen’s Compensation Law by Ch. 322 of the Acts of 1965 as § 36 (3a) and § 36 (4a) of Article 101 of the Annotated Code of Maryland, the subsections then read as follows:
      “(3a) [Permanent partial disability — Specific injuries] — Serious disability. — A person who receives under subsection (3) of this section an award for a period of one hundred and seventy-five weeks or more is thereby considered to have a serious disability. He automatically shall be entitled to (in addition to the award under subsection (3)) an extra award of a number of weeks equal to one third (computed to the nearest whole number) of the number of weeks awarded under subsection (3); 'and the award of compensation to him in no case shall exceed forty dollars per week; and as to him the maximum limitation of $12,500 shall not apply. * * *.”
      “(4a) [Permanent partial disability — Other cases] — Serious disability. — A person who receives under subsection (4) of this section an award equal in total to forty per centum or more of $12,500 is thereby considered to have a serious disability. He automatically shall be entitled to (in addition to the award under subsection (4)) an extra award of a number of weeks equal to one third (computed to the nearest whole number) of the number of weeks awarded under subsection (4); and the award of compensation to him in no case shall exceed forty dollars per week; and as to him the maximum limitation of $12,500 shall not apply.”

      . Consolidated Engineering Co. v. Cooper, 246 Md. 610, n. 1, 228 A. 2d 823, n. 1. (1966). '

      . King Furniture Co. v. Thompson, 248 Md. 682, 238 A. 2d 231 (1967).

      . Other changes, minor in character, effected by the new subsection were: (a) compensation benefits for disfigurement or mutilation under § 36 3 (f) should not be considered in the determination of “serious disability”; and (b)-the maximum weekly benefits payable for such “serious disability” were increased from $40.00 to $65.00 weekly.

      . The Court in Barnes, supra, had said: “And in order for him to qualify under 4a, [of the prior law] the claimant must have been awarded compensation for 200 weeks or more (i.e., an award equal to 40% or more of $12,500 at $25 a week). (In that case the “other cases” disability of the claimant was 40% and at that point in time the maximum “other cases” award was $12,500 at $25 weekly.)


source: Caselaw Access Project

author: Lowe, J.,

license: Public Domain

text:
    ROSE AND CROWN, LTD. et al. v. SHAW ENTERPRISES, INC.
    [No. 130,
    September Term, 1975.]

      Decided November 5, 1975.

      The cause was argued before Morton, Davidson and Lowe, JJ.

      Roger W. Titus for appellants.

      Jules Fink for appellee.
   Lowe, J.,

delivered the opinion of the Court.

By judgment concluding a lengthy and detailed opinion by Judge John F. McAuliffe, in the Circuit Court for Montgomery County, the commercial tenant operating the Rose and Crown Restaurant suffered forfeiture of its lease to the landlord, Shaw Enterprises, Inc. Although the substantial evidence and numerous issues in the case warranted the length of the opinion, we are faced with only two of the problems that confronted the lower court. To the extent possible we will limit the facts to accord these issues.

For our purposes it will suffice to note that appellee demised to appellants premises for the operation of a restaurant which included the sharing of parking facilities with appellee’s motel customers. The ten year lease called for rental in an amount equal to 7% of appellants’ monthly gross with a minimum guaranteed rental of $1,250.00, increasing to $1,666.67 after 5 years. To ascertain the 7%, appellants were to deliver to appellee a statement of all gross receipts during the preceding month together with the percentage due. Biannually, on the 15th day of June and December, a statement of gross receipts was required for the preceding six months,

“. . . verified by a certified public accountant in good standing together with payment of any additional percentage rental found to be due for such period.. . .
If the Landlord is not satisfied with any such monthly or semi-annual statement, it shall give the Tenant written notice of such dissatisfaction within thirty (30) days after receipt of such statement.. . .”

Appellants concede that the biannual statements due in 1971 and June 15, 1972 were not submitted as agreed. Nor was the percentage rental paid for the months of April, May and June of 1972 in excess of the minimum amount guarantee. Appellants contend that such rental was withheld because appellee had preempted half of the available parking area for temporary storage.

On August 8, 1972 appellee wrote appellants asserting their breach of the lease, citing the aforesaid failures among others. Appellants responded indicating a willingness to negotiate their potential business loss due to deprived parking against the withheld percentage rental. If silence by appellee did not convey its declination to negotiate, the suit that followed on August 28,1972 surely did.

Appellants continued to tender future rental which appellee continued to accept, designating the sums so accepted as mesne profits which it referred to as “quantum meruit damages” in a letter dated October 31,1972:

“As I have previously informed you, any amounts of monies accepted by Mr. Shaw for rent due prior to the suit was and is accepted on the basis of arrearages due in the rent. Any sums accepted after August 18th, 1972, was accepted on the basis of quantum meruit damages for the tenant’s continued breach of the Lease.”

Appellee continued to accept the rental payments during the period awaiting trial. “Additional rental,” called for by the lease, of a percentage of increased real estate taxes was even demanded, and presumably received.

The case was tried in July of 1974 before Judge McAuliffe whose well articulated opinion contains numerous findings of fact, by which we are bound unless we find them to be clearly erroneous. Md. Rule 1086. We will also attempt to restrict our recitation of his findings to those relevant to the questions raised. After detailing the many grievances and disagreements leading to the present litigation he found among other things:

1. “Specifically, the tenant has failed or refused to pay all of the rent when and as the same came due, and has failed and refused to provide all the reports required of it by the third numbered paragraph of the lease agreement.”
2. Judicially noting an inevitable delay between suit and trial as in excess of a year, the court found that appellants were not misled by the continued acceptance of rent for “its continued occupancy was a valuable right, even if it had breached the lease and thereby forfeited the lease, and it was not therefore unreasonable for the tenant to continue to make payments in an amount which both parties had agreed was fair and reasonable for the occupancy of the premises.”
3. “. . . that the failure on the part of the tenant to provide the financial reports required by the lease was persistent, calculated, deliberate, wilful, in violation of the fundamental principles of fair dealing, and did in fact amount to bad faith.”
4. “. . . that original records of transactions of the Rose and Crown Restaurant taken from the cash register and/or the precheck machine, were intentionally destroyed to cover falsification of the records as to gross receipts.”
5. “. . . the original reluctance, and ultimate refusal of the Defendants to provide the statement required by the lease cannot be excused as mere negligence, or even gross negligence, but as indicated above, was clearly wilfull, deliberate and an act of bad faith.”

The judge then decided that:

“Accordingly, the breach is such as will support the forfeiture of the lease and the relief sought, namely possession of the premises, and equitable relief to the defendant is not indicated.”

The appeal is limited here to two contentions, waiver by the landlord and entitlement to equitable relief from forfeiture by the tenant.

Waiver

The letter of August 8, 1972 clearly apprised appellants of appellee’s intention to forfeit the lease. The letter said in part:

“Our patience, however, can endure no longer and we can no longer accede to your requests for further time. We must therefore furnish you the ten day notice provided by Paragraph 15 [] of the Lease, and this letter shall be regarded as such notice. During this time, you are hereby notified to correct the following deficiencies:. . . .”

There followed two pages of “deficiencies”, in considerable detail, including the failure to pay the percentage rent for April, May and June of 1972, the failure to furnish monthly statements for the months of December, 1971 through June, 1972 and the failure to furnish the six month statements verified by a certified public accountant for the period ending May 31, 1970, November 31, 1970, May 31, 1971, November 31,1971 and May 31,1972.

Citing Baltimore Butchers Abattoir & Live Stock Co., Inc. v. Union Rendering Co., 179 Md. 117 and Frederick Motor Sales, Inc. v. Baltimore and Ohio Railroad Company, 202 Md. 491, appellants begin with the general premise that since forfeitures for breaches of covenants are not favored, any slight acquiescence in a breach will be construed as a waiver of the forfeiture. They narrow this by contending that because appellee accepted rental payments for the two months immediately preceding the forfeiture notice and continuously since then, he has waived the forfeiture. Appellants furthermore contend that the October 31, 1972 letter designating the payments as “quantum meruit” can not affect the waiver by acceptance. Appellants rely most heavily on text authority for that premise, stating that:

“Where the landlord, with knowledge or notice of an alleged breach accepts rent from his tenant, he waives his right to a forfeiture on such grounds, 49 Am. Jur. 2d, Landlord and Tenant, Section 1067, unless, for example, the lease contains an anti-waiver provision.. . .”

Had appellants completed the expression of the law as it appears in 49 Am.Jur.2d, Sec. 1067, they would have found that it was followed by the qualifying phrase,

“. . . unless there are circumstances arising from such acceptance of rent by him so as to negative the presumption of his affirmance of the continuance of the lease.”

In addition, we do not agree with what is recited as an absolute in appellants’ interpretation of the law espoused by the Court of Appeals:

“. . . and the rule that waiver of forfeiture occurs by acceptance of rent which became due after a breach committed by the tenant is fully applicable as enunciated by the Court of Appeals in Morrison vs. Smith, 90 Md. 76, 44 A. 1031 (1899). See also, Ammendale Normal Institute, Inc. vs. Schrom Construction, Inc., 264 Md. 617, 288 A. 2d 140 (1972). Acceptance of rent under such circumstances is a clear waiver of the right to declare a forfeiture, and runs directly counter to the binding nature of the election which must be made by a landlord having knowledge of an alleged breach.”

Under appellants’ interpretation of the law, when ejectment of the tenant from the premises awaits a court determination, they would be permitted to stay on the premises and the landlord would be compelled to foreswear payment therefore at the risk of waiving his right of forfeiture. We do not so strictly construe it.

Morrison primarily holds that when a lease is liable to forfeiture for non-payment of rent when due, the subsequent receipt of that rent is not in itself a waiver of the forfeiture. What appellant refers to as “the rule” in Morrison was a qualification to a basic rule of non-waiver by acceptance of rent gleaned from even more ancient authority than itself.

“ ‘The receipt of rent after a breach of covenant does not operate as a waiver unless the rent received accrued subsequently to the act which works the forfeiture.’ Bleeker v. Smith, 13 Wend. 530; Williams v. Vanderbilt, 21 L. R. A. 489; 12 Am. and Eng. Ency. of Law (1st ed.) 758 n. ‘The ordinary waiver of forfeiture occurs by an acceptance of rent which became due after a breach committed by the tenant. ’ Section 497, Taylor’s Landlord and Tenant (7th ed.) This seems to be the well recognized rule of law on the subject settled by the great weight of authorities, if not by all.” Morrison v. Smith, 90 Md. at 83.

The message of Morrison in regard to the acceptance of rent accruing after a breach is that such acceptance by the landlord is evidence of waiver of such strength, that standing alone, it would suffice as proof of waiver of forfeiture. It is, in short, a presumption. That presumption, as with any disputable one, is only viable in the absence of certainty, or until certainty or evidence of greater persuasion than that having given rise to the presumption, can be ascertained.

In Streeter v. Middlemas, 240 Md. 169, the question of waiver by subsequent acceptance of rent was an issue. Although in that case the lease had a non-waiver by acceptance clause, the Court did not decide the question on the language of the lease. The Court’s emphasis was placed upon whether or not the tenant was misled by the acceptance:

“In any event the landlords’ actions clearly established a no waiver policy. They twice were forced to institute suits to collect back taxes, and in July of 1962 brought suit in the People’s Court of Montgomery County to recover possession of the premises. Even after this suit was terminated because of the lack of jurisdiction of the People’s Court, the breach of the covenant to pay rent when due continued. It is clear that the tenants were not misled as to the landlords’ determination to enforce their rights under the lease. Thus the former breaches were not waived and could properly be given consideration by the trial judge when deciding whether it was appropriate to grant equitable relief to prevent the forfeiture of the lease.” [Emphasis added]. Streeter v. Middlemas, 240 Md. at 175.

While the qualifying rule of Morrison is the expression of a natural presumption based upon a common sense conclusion when standing alone, Streeter points up how illogical it becomes when evidence is at hand to indicate a clearly expressed, and obviously understood, intention to the contrary as in the case at bar. Appellee’s precipitous suit following its August 8, 1972 letter clearly indicated its intention to terminate the lease. To assure that appellants be not misled, it again spelled out that its acceptance of subsequent rental, i.e., due after the expiration of the 10 day notice “was accepted on a ‘quantum meruit’ ” basis. Whether appellee meant by that phrase “mesne profits” as suggested in appellants’ brief is not significant. However interpreted, it was clearly intended as an assurance that acceptance of rental did not indicate intention to waive the forfeiture. We agree with the conclusion of the trial judge from the facts as he found them; appellants were not misled and appellee did not waive the forfeiture by accepting payments for appellants’ holding over pending litigation.

A holding to the contrary would of necessity require us first to ignore the facts as found by the trial judge and secondly to ignore entirely the failure on the part of appellants to provide the financial reports required by the lease, none of which have ever been produced, and without which the rent due cannot be determined. Finally, we would have to hold that Morrison expressed a rigid rule of law rather than a presumption given rise to by proof of specific facts and subject to refutation by proof to the contrary.

Equitable Relief from Forfeiture

Recognizing that the purpose for the condition requiring financial statements was to determine the amount of rent, we are faced with the principle of relief from forfeiture upon equitable grounds stated in Wylie v. Kirby, 115 Md. 282, 286-287:

“It is an established doctrine that equity will grant relief from a forfeiture, where such a condition is provided to secure the payment of money, as in the case of right of re-entry for the non-payment of rent at the time designated in the lease. Carpenter v. Wilson, 100 Md. 22; City Bank of Baltimore v. Smith, 3 G. & J. 280; Story’s Equity Jur., 13th ed., secs. 1314 to 1316. In his discussion of the subject JUSTICE STORY observes: ‘In reason, in conscience, in natural equity, there is no ground to say because a man has stipulated for a penalty in case of his omission to do a particular act (the real object of the parties being the performance of the act), that if he omits to do the act he shall suffer an enormous loss wholly disproportionate to the injury to the other party.’ ”

That principle, like the waiver doctrine, is an offshoot of the disfavor with which the courts will view a forfeiture. It seems little more than an application of the rules of fair play to landlords and tenants. In accord with that concept, however, is the proviso expressed in Wylie v. Kirby, supra, 115 Md. at 287, this time quoting 2 Taylor on Landlord and Tenant, Sec. 496, providing a circumstance when equity will not intervene:

“ ‘But Courts of equity are only closed against the tenant where the forfeiture is incurred by his wilful and culpable neglect to fulfill the terms of his covenant and not in cases where the omission has been occasioned by inevitable accident. And the general rule to be applied to all such cases seems to be that Courts of equity will relieve where the omission and subsequent forfeiture are the result of mistake or accident and the injury and inconvenience arising from it are capable of compensation; but where the transaction is wilful, or the compensation impracticable, they invariably refuse to interfere. ’ ” [Emphasis added].

It is apparent that the case at bar fits the exception, not the rule. Certainly when Judge McAuliffe found that the cash register tapes had been intentionally burned and records manipulated, the real rent due could never be determined. Consequently, the “wilfull” acts created a situation where the determination of the “compensation” becomes “impracticable.” Equitable relief becomes unavailable under both Wylie exceptions.

The most recent discussion of the equitable relief against forfeiture doctrine states an even more conclusive reason for denying such relief, i.e., where the tenant has violated fundamental principles of fair dealing. Judge Singley, writing for the Court of Appeals in Dreisonstok v. Dworman Bldg. Corp., 264 Md. 50, 59, said:

“The authorities consistently teach that although equitable relief against forfeiture will be afforded where a default in the payment of rent is due to fraud, mistake, surprise or accidents, courts of equity are divided on the question whether they should intercede where the breach is due to gross negligence, or is wilful and persistent, but none 'will grant relief against forfeiture where the tenant has violated fundamental principles of fair dealing. ...” [Emphasis added]

It will be noted that Judge McAuliffe also found that these appellants had violated fundamental principles of fair dealing. We are in accord with that finding from our review of the record and it follows without need of expression that we do not find him clearly erroneous in having so found. The prolonged non-compliance with the terms of the lease, the intentional destruction of records from which the statements and audits should have been made and the manipulation of books and records to reflect less gross income than was actually received — all of which the judge found as facts — certainly “violated fundamental principles of fair dealing.” The precision of articulation and reasoning in the judge’s written opinion made it clear that the evidence was weighed on a Dreisonstok scale. Such careful consideration, in light of the proper tests applied by him as to waiver, as well as equitable relief, left little for us to do but determine whether the evidence was sufficient to sustain his factual findings. We find that to be the case. None of his findings of fact were “clearly erroneous.” Md. Rule 1086.

Judgment affirmed.

Costs to be paid by appellants.

      . Originally the lease required that the statements be submitted on the 15th day of May and November. The dates were changed by an agreement dated December 21,1968.

      . The court acknowledged appellants’ reasons for withholding the rental, i.e., the usurped parking area, but explained that this did not justify withholding the rental due under the agreement. Gratuitously, the court set forth several alternative remedies appellants had available.

      . The evidentiary findings included lengthy, periodic withholding of funds unaccounted for by tenant, burning of cash register records, no audits by certified public accountants, and manipulated records “to reflect less gross income than was actually being received.” Our review of the records accords that there was sufficient evidence for such findings.

      .
      “(15) FAILURE TO PA Y: If Tenant shall fail to pay said rent as aforesaid, or break or violate any of the within covenants, conditions, or agreements, and if such breach be not corrected (or if correction takes more than ten (10) days if action to correct be not begun and carried on with due diligence) within ten (10) days after written notice by Landlord to Tenant of such breach then and in any of the said events, this lease and all things herein contained shall, at Landlord’s option, cease and determine and shall operate as a Notice to Quit, any other written Notice to Quit being hereby expressly waived. Landlord may proceed to recover possession of said premises under and by virtue of such legal process as may at the time be in operation. When such possession is obtained, Landlord may re-rent the demised premises at Tenant’s risk and cost. Its defaults in no instance shall relieve Tenant of liability for the difference between the rent herein reserved and the net rent actually received by Landlord during the term remaining after such default occurs but Landlord agrees to use its best efforts to mitigate damages by re-letting the premises. If, in the event of such default Landlord elects not to lease the demised premises or elects to lease to a related party, no damages shall be payable to Landlord in respect of such period. Tenant shall pay a reasonable fee for an attorney engaged by Landlord to protect its rights in regaining possession of the demised premises in the event of such default.”

      . Obviously the appellee meant November 30.

      . We have reviewed the out-of-state authorities cited to us by appellants, but find ample apposite case law within Maryland to decide this case.


author: Gilbert, J.,

text:
    WILLIAM EDWARD TAYLOR, JR. v. STATE OF MARYLAND
    [No. 150,
    September Term, 1975.]

      Decided November 5, 1975.

      The cause was argued before Orth, C. J., and Gilbert and Melvin, JJ.

      Howard L. Cardin, Assigned Public Defender, for appellant.

      Gilbert Rosenthal, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William E. Brannan, State’s Attorney for Baltimore County, and Steven D. Silverman, Assistant State’s Attorney for Baltimore County, on the brief, for appellee.
   Gilbert, J.,

delivered the opinion of the Court.

The text writers on the law of evidence are generally agreed that cross-examination of character witnesses as to specific acts of a defendant for the purpose of testing the witnesses’ knowledge and credibility is permissible as an exception to the rule that forbids the impeachment of witnesses by extrinsic testimony of such acts. 1 See Commonwealth v. Selkow, 206 Pa. Super. 273, 212 A. 2d 919 (1965). The Supreme Court in Michelson v. United States, 335 U. S. 469, 69 S. Ct. 213, 93 L. Ed. 168 (1948), the Court of Appeals in Comi v. State, 202 Md. 472, 97 A. 2d 129 (1953) and this Court in Avery v. State, 15 Md. App. 520, 292 A. 2d 728 (1972), cert. denied, 266 Md. 733 (1972), appeal dismissed, 410 U. S. 977 (1973), have all adopted views to the effect that:

“A character witness may be cross-examined as to an arrest whether or not it culminated in a conviction. . . .” Michelson v. United States, 335 U. S. at 482.

Subsequent to the Michelson decision the Supreme Court decided Burgett v. Texas, 389 U. S. 109, 88 S. Ct. 258, 19 L.Ed.2d 319 (1967) in which the Court ruled that a conviction obtained in violation of Gideon v. Wainwright, 372 U. S. 335, 83 S. Ct. 792, 9 L.Ed.2d 799 (1963) could not be used “to support guilt or enhance punishment.” Later, the Court adjudicated United States v. Tucker, 404 U. S. 443, 92 S. Ct. 589, 30 L.Ed.2d 592 (1972) and thus extended Burgett so as to proscribe, in sentencing, the use of convictions obtained in violation of an accused’s fundamental right to counsel. See Carroll v. State, 19 Md. App. 179, 310 A. 2d 161 (1973); Moore v. State, 17 Md. App. 237, 300 A. 2d 388 (1973); Towers v. Director, 16 Md. App. 678, 299 A. 2d 461 (1973).

In Loper v. Beto, 405 U. S. 473, 92 S. Ct. 1014, 31 L.Ed.2d 374 (1972), Mr. Justice Stewart, writing for the plurality, said:

“Unless Burgett is to be forsaken, the conclusion is inescapable that the use of convictions constitutionally invalid under Gideon v. Wainwright to impeach a defendant’s credibility deprive him of due process of law.” 405 U. S. at 483. (Footnote omitted). (Emphasis supplied).

Mr. Justice Stewart went on to quote with approval the words of the Court of Appeals for the First Circuit in Gilday v. Scafati, 428 F. 2d 1027, 1029 (1st Cir. 1970) wherein that Court said:

“We conclude that the Burgett rule against use of uncounseled convictions ‘to prove guilt’ was intended to prohibit their use ‘to impeach credibility’, for the obvious purpose and likely effect of im,peaching the defendant’s credibility is to imply, if not prove, guilt. Even if such prohibition was not originally contemplated, we fail to discern any distinction which would allow such invalid convictions to be used to impeach credibility. The absence of counsel impairs the reliability of such convictions just as much when used to impeach as when used as direct proof of guilt.” (Emphasis supplied).

It is plain that the trinity of Burgett, Tucker, and Loper banned the use of constitutionally infirm convictions as a basis of (1) enhancing punishment of the defendant, (2) supporting guilt of the defendant, or (3) impeaching the credibility of the defendant. What is not so plain is, do the holdings of Burgett, Tucker, and Loper prohibit the use of defendants’ admittedly constitutionally defective convictions in cross-examining defendants’ character witnesses.

William Edward Taylor, Jr., appellant, was convicted at a jury trial, in the Circuit Court for Baltimore County, presided over by Judge Kenneth C. Proctor, of murder in the second degree, use of a handgun in the commission of a felony, assault upon a police officer and another similar charge of assault. At trial, immediately prior to the presentation of the defense, counsel apprised the court that a problem had arisen relative to cross-examining the defendant’s “character witnesses”. The judge was advised that the State possessed knowledge that appellant had been convicted twice in 1963 of assault. In April of 1963 he had been “found guilty of assault by striking someone and fined $13.00.” The following month of that year he was adjudged “guilty of assault and battery and fined $53.00.” Both convictions antedated Gideon, were without benefit of counsel, and were constitutionally infirm. If questions concerning the convictions were posed to the appellant, they would be impermissible under Burgett, Tucker, and Loper. The appellant vigorously objected to the State’s request that it be permitted to interrogate the character witnesses about the two pre-Gideon convictions.

Appellant was under che impression that such testimony could not be properly allowed under Burgett and its siblings. The State, however, on the strength of this Court’s decision in Avery v. State, supra, and the Court of Appeals’s decision in Comi v. State, supra, carried the day and was granted permission to cross-examine the character witnesses with respect to their knowledge of the two 1963 convictions for assault.

The appellant produced a series of witnesses, all of whom had known the appellant for a number of years and who testified as to his good reputation in the community. One witness, in response to a question by the trial court as to whether the witness “[w]ould . . . believe [appellant] no matter what he says” responded, “There’s a doubt in my mind,” but that appellant was a “peaceful man.” On cross-examination inquiry was made as to whether the witness had ever heard “. .. that in 1963, specifically April 1, 1963, that Mr. Taylor was found guilty of an assault by striking a Baltimore County police officer,” and . . fined $13.00 at that time.” Further interrogation sought to ascertain if the witness had ever “. . . heard that on May 21, 1963, Mr. Taylor was found guilty of an assault and battery in Baltimore County, and fined $53.00. . . .” To both questions the witness replied in the negative. A second witness testified as to appellant’s “excellent” reputation for “truthfulness and veracity.” The witness characterized Taylor as a “peaceful person.” The witness was not, however, cross-examined relative to the 1963 convictions. A third witness, a clergyman, stated that Taylor “was always truthful”, and that he considered the appellant a “reliable” and “peaceful person.” When cross-examined by the Assistant State’s Attorney, the witness readily acknowledged that he did not know that appellant had been living at an address different than the one about which the minister had been told, and that even if the witness had known, that knowledge would not alter the clergyman’s opinion of the appellant. The clergyman further said that he had not heard of the two 1963 convictions for assault.

Taylor, testifying in his own defense, made a judicial confession that he had shot and killed the decedent, Barbara Bernice Daughton, on December 3, 1973. Following the jury’s verdicts on the various counts of the indictment, Judge Proctor sentenced Taylor to thirty years for the second degree murder, and to a five year consecutive term for the handgun violation. The other two sentences are to be served concurrently.

In this Court Taylor voices objection to the use at his trial of the 1963 convictions on the ground that they were barred by Gideon v. Wainwright, supra, and that their use either to “support guilt or enhance punishment for some other offense” erodes the principle of Gideon and violates Burgett. We glean from counsel’s argument that he is in effect relying upon Heywood’s Proverbs, Bk. 2, ch. 6 (1546) wherein it is said, “He that hath an ill name is half hang’d ye know.”

Because a person’s prior convictions may, as seen by some eyes, cause him to be “half hang’d”, the law, in order to protect a defendant, insists, however, that the convictions must have been constitutionally obtained before they are admissible for the purpose of impeachment of the defendant. When an accused objects to the State’s use of prior convictions for purposes of impeachment, the State, out of the presence of the jury, must be able to convince the court of the constitutionality of such convictions before they may be utilized. Moore v. State, supra; Johnson v. State, 9 Md. App. 166, 263 A. 2d 232 (1970). Moore and Johnson are concerned, as are Burgett, Tucker, and Loper, with precluding the State's cross-examination of a defendant as to his constitutionally invalid prior convictions.

We do not read the trilogy of Burgett, Tucker, and Loper as proscribing the use under all circumstances of unconstitutionally obtained convictions. On the contrary, each of those cases, as we have noted, dealt with a defendant who had taken the stand and was then interrogated by the State relative to constitutionally infirm prior convictions. We see a vast difference between a defendant’s taking the stand in his own defense and then being subjected to cross-examination about constitutionally invalid prior convictions and the cross-examination of a so-called “character witness”. In the former, some text writers think that if the accused declines to testify, a jury, despite instructions to the contrary, may well assume his guilt, but no such assumption will be made by the jury from a failure of a defendant to call witnesses to testify as to the defendant’s good reputation. McCormick’s Handbook on the Law of Evidence § 191 (2d ed. E. Cleary 1972). We observe that it is the defendant in the first instance who opens the door to reputation testimony by his introduction of such evidence. When an accused offers evidence intended to show that he is regarded in the community as a truthful, peaceful and honest person, so that a jury may infer that he would not likely be the type of person who would commit the crime charged, he must expect that the State will pursue the matter in order to demonstrate that the appellant’s witnesses are not credible or not knowledgeable, or both. In short, while the State is generally precluded from showing an accused’s past reputation, “[t]he price a defendant must pay for attempting to prove his good name is to throw open the entire subject which the law has kept closed for his benefit and to make himself vulnerable where the law otherwise shields him.” Michelson v. United States, 335 U. S. at 479. Mr. Justice Jackson, in Michelson, supra, said:

“. . . Another hazard is that his [the accused’s] own witness is subject to cross-examination as to the contents and extent of the hearsay on which he bases his conclusions, and he may be required to disclose rumors and reports that are current even if they do not affect his own conclusion. It may test the sufficiency of his knowledge by asking what stories were circulating concerning events, such as one’s arrest, about which people normally comment and speculate. Thus, while the law gives defendant the option to show as a fact that his reputation reflects a life and habit incompatible with commission of the offense charged, it subjects his proof to tests of credibility designed to prevent him from profiting by a mere parade of partisans.” 335 U. S. at 479. (Footnote omitted).

2 C. Torcia, Wharton’s Criminal Evidence § 426 (13th ed. 1972) states the common law rule:

“A character witness may be cross-examined regarding rumors or reports of particular acts or misconduct imputed to the defendant. The particular acts or misconduct may not be so remote in point of time from the commission of the crime charged as to supply, by that fact alone, a strong inference of reformation. Needless to say such acts or misconduct must have occurred prior to, and not after, the commission of the crime charged.” (Footnote omitted).

See also 3A J. Wigmore, Evidence § 988 (Chadbourn rev. 1970).

A character witness at common law could be cross-examined about specific or particular acts or courses of conduct of a defendant, but on direct examination he could not testify to such specific or particular acts or courses of conduct. His testimony was, in essence, limited to what he heard from others about the defendant’s reputation. The common law has been modified by statute in Maryland. Courts and Judicial Proceedings Article § 9-115 provides:

“Where character evidence is otherwise relevant to the proceeding, no person offered as a character witness who has an adequate basis for forming an opinion as to another person’s character shall hereafter be excluded from giving evidence based on personal opinion to prove character, either in person or by deposition, in any suit, action or proceeding, civil or criminal, in any court or before any judge, or jury of the State.”

As a result of the enactment of what is now Courts Art. § 9-115, Maryland possesses the common law rule with a vastly broadened field of vision. No longer is a character witness prevented from speaking of specific acts or precluded from demonstrating a basis of knowledge leading to his own independent opinion. To an extent, this State has eliminated some of the underlying hearsay present in the common law rule relative to character witness testimony.

The cross-examination of a character witness is not boundless. Wharton’s Criminal Evidence warns:

“Cross-examination of a character witness regarding prior acts or misconduct of the defendant is fraught with such obvious danger of prejudice to the defendant that the trial judge should carefully limit its impact by an appropriate admonition as to its purpose. Moreover, in cross-examining the character witness, the prosecuting attorney must act in good faith, which means at least that the subjects of inquiry — i.e., the prior acts or misconduct imputed to the defendant — should have some basis of actuality. A lack of good faith may constitute prejudicial error, as may interrogation for the sole purpose of getting otherwise improper evidence before the jury.” 2 C. Torcia, Wharton’s Criminal Evidence § 426 (13th ed. 1972) (Footnotes omitted).

Michelson counsels that the wide discretion allowed trial judges in determining whether to permit such a cross-examination “. . . is accompanied by heavy responsibility ... to protect the practice from any misuse.” 335 U. S. at 480. Michelson has made it crystalline that the presentation of character witnesses by a defendant opens the door to cross-examination concerning the defendant’s prior arrests or convictions. It is equally transpicuous that it is the trial judge who is to determine what passes through that door. Awkard v. United States, 352 F. 2d 641 (D.C. Cir. 1965). We think trial judges should bear in mind that the purpose of the cross-examination of the character witness is to affect the weight of the witnesses’ testimony, not discredit the person on whose behalf the witness is testifying. Brown v. State, 477 S.W.2d 617 (Tex. Crim. 1972).

We decline to extend the holdings of Burgett, Tucker, Loper, Carroll, Moore, and Towers so as to prohibit the use of a defendant’s constitutionally deficient prior convictions in cross-examining character witnesses. There is, in our view, nothing in the Federal or State Constitutions that prohibits the prosecution from cross-examining a defendant’s character witnesses so as to test their credibility and knowledge. Such a test is permissible, inter alia, so that the prosecution might show that the character witness, notwithstanding his or her knowledge of the accused’s lengthy involvement in heinous crimes, nevertheless, incredibly, considers the accused to be a peaceful, law abiding person. The prosecution might test whether the character witness knew of the prior criminal convictions of the defendant, and if not, whether such knowledge would alter the witness’s opinion. In the former example, the questioning would demonstrate that the witness was not credible, in the latter that he was not knowledgeable.

We think that Burgett, Tucker, and Loper did not overrule or modify Michelson, nor did we in Carroll, Moore or Towers extend their holdings. Those cases were addressed and limited to the impermissible use of constitutionally imperfect prior convictions in the cross-examination of an accused or at time of sentencing. We note that Judge Proctor instructed the jury that any testimony concerning convictions that were put to the character witnesses “. . . have no weight whatsoever, no validity whatsoever, as to the guilt or innocence of Mr. Taylor.” The evidence was admitted solely for the purpose of impeaching the credibility of the character witnesses. We perceive no error in Judge Proctor’s allowing the State to interrogate the appellant’s character witnesses as- to their knowledge of the appellant’s prior convictions for assault.

Appellant next argues, and the State agrees, that the trial judge erred in construing Md. Ann. Code art. 27, § 36B (d) as requiring the court to impose a consecutive sentence for the use of a handgun in the commission of a felony. This Court in Wright v. State, 24 Md. App. 309, 330 A. 2d 482 (1975), cert. denied by the Court of Appeals, April 7, 1975, held that consecutive sentences were not mandated by the Code. In fairness to the trial judge, we point out that Wright was decided subsequent to the trial in the instant case. At sentencing the judge indicated that he had “no choice” but to impose the consecutive sentences, while, as we have made clear under Wright, there is a choice. We affirm the conviction for that offense, but vacate the sentence thereon in order that the judge may reconsider the same.

Judgments as to counts 1, J and 5, affirmed.

Conviction as to count S affirmed; sentence vacated and case remanded for the imposition of a new sentence.

      . See 3A J. Wigmore, Evidence § 988 (Chadbourn rev. 1970); McCormick’s Handbook of the Law of Évidence § 191 (2d ed. E. Cleary 1972); 2 C. Torcia, Wharton’s Criminal Evidence § 426 (13th ed. 1972); 1 H. Underhill, Cri,minal Evidence § 197 (5th ed. 1956).

      . Mr. Justice Stewart was joined by Justices Douglas, Brennan and Marshall. Mr. Justice White concurred in the result. The Chief Justice dissented and was joined therein by Mr. Justice Powell. Mr. Justice Rehnquist and Mr. Justice Blackmun filed separate dissents.

      . The term character witness appears to be a misnomer that is widely accepted. What is usually meant when such a term as “character witness” is used is “reputation witness”. See Michelson v. United States, 335 U. S. at 477 wherein it is said, “What commonly is called ‘character evidence’ is only such when ‘character’ is employed as a synonym for ‘reputation’.”
      A reputation may, as Shakespeare penned in Othello, Act II, scene iii, line 270, be “. . . an idle and most false imposition; oft got without merit, and lost without deserving.” Nevertheless, our reputation is that by which we are known and is the total sum of how we are seen by others. Character, more philosophically, is the inner man; it is what we really are, not what we are thought to be.

      . Loper, 405 U. S. at 485 (White, J., concurring), and Burgett, 389 U. S. at 115, indicate that even if the use, in cross-examining a defendant, of constitutionally defective prior convictions is improperly permitted, it is still possible for such use to amount to no more than harmless error.

      . Originally enacted by Laws of Maryland 1971, ch. 760, and codified as Md. Ann. Code art. 35, § 13C. Upon the adoption at the 1st Special Sess. 1973 of the Courts and Judicial Proceedings Article, former Code art. 35, § 13C became § 9-115.

      . The rule at common law did not allow a character witness to testify about specific acts or courses of conduct of a defendant, nor was the witness permitted to express his own independent opinion even though it was based on acquaintance, observation, or actual knowledge. Rather the witness was required to discount what he knew and credit what he had heard from others notwithstanding that the witness may or may not be more qualified to make a judgment than those upon whom he had to rely. Michelson v. United States, supra.

      .In Williams v. State, 15 Md. App. 320, 290 A. 2d 542 (1972) this Court reversed a conviction for violation of the narcotics laws because a prosecutor elicited, from the defendant, over objection, “specific acts of misconduct” and he further read to the jury “the entire count of an indictment under which the appellant was convicted of carrying a concealed deadly weapon.”


author: Orth, C. J.,

text:
    WILLIAM GEORGE LaCHANCE v. GEORGINA C. LaCHANCE
    [No. 154,
    September Term, 1975.]

      Decided November 5, 1975.

      The cause was argued before Orth, C. J., and Gilbert and Melvin, JJ.

      Mercedes C. Samborsky for appellant.

      Joel H. Pachino, with whom were George D. Edwards and Friedman, Pachino & Friedman on the brief, for appellee.
   Orth, C. J.,

delivered the opinion of the Court.

The martial attitude of William George LaChance (Husband) and Georgina C. LaChance (Wife) did not end with the dissolution of their marital status. The war between them over their domestic difficulties, marked by numerous skirmishes, both judicial and extra-judicial, could have ceased upon the signing of a decree on 14 January 1975 by the chancellor in the Circuit Court for Baltimore County. Each could have withdrawn from the field of battle without dishonor; neither was obliged to surrender unconditionally. Both obtained what they primarily sought — the termination of their status as husband and wife by the grant of a divorce a vinculo matrimonii on the ground of voluntary separation. Code, art. 16, § 24. The decree also determined the custody of their minor children, provided for the support of the children, and bestowed visitation rights. It disposed of the property of Husband and Wife as they had previously agreed. And it further ordered that Husband pay Wife $20 a week “not to exceed a period of two years accounting from December 20, 1974.” It was the last that rankled Husband. Not that he deemed the amount unreasonable considering her need and his ability to pay. It was simply, it seems, that he did not want to pay her anything at all. So husband, not content to live in peace, renewed hostilities, this time on the appellate level. Wife did not counterattack by way of cross-appeal, but she defended her position resolutely.

The decree was the result of a Supplemental Bill of Complaint filed by Wife on 2 October 1974 in the action then pending. By it she sought a divorce a vinculo matrimonii on the ground of voluntary separation, and in it she prayed, among other relief sought, that she “be awarded a reasonable sum as permanent alimony.” Courts Art. § 3-603. Answering the Supplemental Bill, Husband alleged: “By paragraph 8 of the Separation Agreement between the parties [Wife] waived her right to claim technical alimony, the only type of alimony this Court has jurisdiction to award, by agreeing to non-technical alimony, if she is so entitled.” The precise language of the decretal order for support of Wife read thus:

“ORDERED that the said WILLIAM GEORGE LaCHANCE also pay unto the said GEORGINA C. LaCHANCE, the sum of Twenty Dollars ($20.00) per week as alimony, also payable bi-weekly [] at the rate of Forty Dollars ($40.00) and payable through the Probation Department of this Honorable Court, and not to exceed a period of two years accounting from December 20, 1974, all subject to the further order of the Court in the premises, . . . .”

The decree contained a further order “that the pertinent terms of the agreement by and between the parties hereto dated September 27, 1973, be and they are hereby approved and made a part hereof as if fully set forth herein, . . .

A statement filed on appeal pursuant to Maryland Rule 1026, § g, described the Agreement: “The Agreement contained the facts of the marriage, the date of the separation, the voluntariness of the separation, the names, ages and other provisions relating to the custody and support of the minor children of the parties and the settlement of the property rights of the parties.” It quoted paragraph 8 of the Agreement:

“It is agreed between the parties hereto that the Wife hereby reserves her claim to alimony, maintenance and support. The Wife further agrees that she will not assert said claim until one of the parties hereto files action for an absolute divorce, and if so filed for a period of time not to exceed two (2) years.”

An executed original of the Agreement, received in evidence, shows on its face that the concluding phrase of paragraph 8 — “and if so filed for a period of time not to exceed two (2) years” — was added after the Agreement was first typed. The initials of Wife and the initials of Husband are subscribed at the end of the phrase to attest its addition.

Husband argues on the premise that the chancellor awarded non-technical alimony and therefore erred by directing payment of an amount “not specifically agreed between the parties hereby modifying the contractual agreement of the parties as to the amount of alimony.” It is his position, as best we understand it, that Wife, by agreeing to limit the period during which she was to receive support, waived any right to technical alimony, and by failing to designate an agreed amount to be paid for her support and maintenance, precluded the court from setting an amount in the decree as non-technical alimony. Wife, claiming that although technical alimony may not be enlarged upon, it may be restricted, contends that it was indeed technical alimony the chancellor awarded, and that he had authority to award it for a period of only two years. We are not in complete accord with the position of either Husband or Wife.

Powers, J., speaking for this Court in Simpson v. Simpson, 18 Md. App. 626 (1973), after carefully considering the cases of the Court of Appeals concerning the question whether money allowance for a wife’s support was alimony or not, at 628-629, concisely summarized the law as established:

“1. Alimony is a money allowance payable under a judicial decree by a husband at stated intervals to his wife, or former wife, during their joint lives or until the remarriage of the wife, so long as they live separately, for her support and maintenance. tl
a. It must terminate on the remarriage of the wife.
b. It must terminate on the death of the wife.
c. It must terminate on the death of the husband.
d. If the parties have entered into an agreement providing for payments which meet the required characteristics of alimony, the court may adopt the agreement in ordering the payment of alimony.
e. Alimony ordered by the court is always subject to reconsideration and modification by the court in the light of changed circumstances.
f. Payment of alimony may be enforced by the court by the exercise of its contempt power including attachment and imprisonment of the person.
2, If the parties have entered into an agreement providing for payments which do not meet all of the requirements of alimony, the court may nonetheless incorporate all or part of the agreement in its decree. However, the obligation to pay rests upon the agreement of the parties, and does not become alimony.
a. Such payments may not be modified by the court in the absence of collusion, mistake or fraud. []
b. Such payments do not take the character of alimony because they are described as alimony.
c. Such payments do not take the character of alimony because the parties by their agreement or the court in its decree attempt to give the court or reserve continuing jurisdiction to modify the payments.
d. Such payments, if approved by a decree of the court, may be enforced by the court by the exercise of its contempt power, including attachment and imprisonment of the person.” [ ]

It is manifest that alimony is sui generis. A money allowance payable to a wife must meet the definition of alimony precisely or it is not alimony. The elements of alimony may not be enlarged, and they may not be diminished. Neither more nor less than alimony is alimony. What constitutes alimony depends, not upon what the money allowance is called, but upon who is to receive it, who is to pay it and how long it is to be paid. The payment of alimony can no more be extended beyond the marriage or death of the former wife than it can be limited to a period short of the happening of those events.

By clause 8 of the Agreement, Husband and Wife agreed that Wife reserved her “claim to alimony, maintenance and support.” Wife agreed, (1) not to assert such claim until either Husband or Wife filed an action for an absolute divorce, and (2) if so filed, she would not seek to have such allowance paid to her for longer than two years. Paragraph 8 is notable first, by the omission of a designated amount to be paid Wife by Husband, and, second, by the addition of the clause limiting the period for which she is to receive the allowance.

We believe that when Wife agreed to restrict whatever allowance was paid her by Husband to a period of time not to exceed two years, she thereby relinquished any claim to alimony. As we have seen, contrary to Wife’s view, such a limitation is not consistent with alimony, so that the addition of the phrase limiting the period of payment negated the reservation of alimony. This leaves paragraph 8 reading that Elusband and Wife agree that Wife reserves her claim to maintenance and support, as distinguished from alimony. The two qualifications agreed to by Wife remain in full force and effect, however, with regard to maintenance and support. She shall not seek maintenance and support until one of the parties files an action for an absolute divorce, and, in any event, she shall not seek payment of maintenance and support for a period in excess of two years. Wife abided by the first qualification not to seek an allowance for her support until she or Husband filed an action for an absolute divorce. But her supplemental bill of complaint did not conform with the second qualification, for she requested that she “be awarded a reasonable sum as permanent alimony.” This, under our construction of the Agreement, she had effectively waived. On the other hand, she also asked in her bill that she “may have such other and further relief as the nature of her cause may require.” We think that this prayer would enable the chancellor to incorporate pertinent parts of the Agreement into his decree. Code, art. 16, § 28; Jackson v. Jackson, 14 Md. App. 263 (1972). The question is what did Husband and Wife agree upon as to Wife’s maintenance and support.

By the express terms of the Agreement, as we have indicated, Wife had a right to claim maintenance and support with the payment thereof restricted to two years. No amount, however, was specified. Husband claims that the chancellor was precluded from setting an amount. Husband reasons that the chancellor could incorporate in his decree only what the contractual agreement between Husband and Wife explicity provided. He could not modify that contract. See Eigenbrode v. Eigenbrode, 19 Md. App. 597 (1974). The chancellor could not, according to Husband, cure the failure to specify an amount by setting a figure to be paid. We reject this argument. Under Husband’s interpretation, paragraph 8, as finally agreed upon, would be utterly meaningless. Under his construction, the parties agreed that a claim to alimony was reserved by Wife, but what was reserved was a claim to nothing at all. We do not believe that this result was what Husband and Wife intended, and we cannot see an intention in the language of the Agreement that Wife was to receive nothing for a period not to exceed two years. This would be grossly unfair. Wife should not be deprived of maintenance and support, to which she may be otherwise entitled, by a dubious construction of a contractual provision. Harris v. Wye Tree Experts, Inc., 273 Md. 454, 458 (1975). The rule is that contracts should receive a reasonable construction rather than one which produces an unreasonable or harsh result. Id., at 458, citing Canaras v. Lift Truck Services, Inc., 272 Md. 337, 357 (1974); Garfinkel v. Schwartzman, 253 Md. 710, 720 (1969); Cadem v. Nanna, 243 Md. 536, 544 (1966); Baltimore City v. Industrial Electronics, Inc., 230 Md. 224, 229 (1962). We think it manifest that the parties, by agreeing that Wife reserved “her claim” to maintenance and support, and by declaring that the clause was not to be asserted until an action for an absolute divorce was filed, contemplated the intervention of the court in which the action was instituted to establish, in its sound discretion, the sum to be paid. This would enable the amount established to be compatible with the situation of the parties at the time the claim reserved was made. In arriving at an amount, the discretion of the court would be soundly exercised if the court were guided by the same basic factors as in an award of alimony, that is the ability of the husband to provide support and the wife’s need for it. See Willoughby v. Willoughby, 256 Md. 590 (1970). The language of paragraph 8 is susceptible of a clear and definite understanding, and there is no intimation of fraud, duress or mutual mistake. Thus, the true test of what was meant is what a reasonable person in the position of the parties would have thought it meant. Billmyre v. Sacred Heart Hosp., 273 Md. 638, 642-643 (1975); Ray v. Eunice, 201 Md. 115, 127 (1952). We believe that a reasonable person in the position of Husband and Wife would have thought that paragraph 8 meant that the chancellor presiding in the court in which the action for an absolute divorce was filed, was, in his sound discretion, to fix the amount to be paid by Husband to Wife for her maintenance and support, and that such payment was to have the incidents of alimony except that it was not to be paid for longer than two years. And, as the parties contemplated that the court would fix such sum as was reasonable considering the situation of the parties, they also contemplated that the court would have continuing jurisdiction over the award for a period not to exceed two years, so that the amount of the allowance could be changed, during that period, to be compatible with a changed situation of the parties. In short, the allowance for her support was to have all the incidents of alimony except that it was in no event to continue for more than two years.

We hold:

(1) Regardless of being characterized as “alimony”, the award of $20 ordered in the decree of 14 January 1975 to be paid by Husband to Wife was not alimony but was an allowance for support of the wife arising under the contractual agreement of 27 September 1973;
(2) The allowance for support was to terminate:
(a) on the remarriage of Wife;
(b) on death of Wife;
(c) on death of Husband;
(d) at the expiration of two years from 20 December 1974;
whichever first occurred.
(3) For a period of two years, unless sooner terminated, the allowance for support was subject to the further order of the court.

The decretal order concerning the maintenance and support of wife is modified by deleting therefrom the words “as alimony”, and, as modified, is affirmed.

Decree of 11 January 1975 modified in accordance with this opinion and as modified is affirmed; costs to be paid by appellant.

      . LaChance v. LaChance, Docket E. H. K. Jr., Liber 101, folio 251, no. 78874. Jenifer, J. heard the matter. Proctor, J. issued the decree. Maryland Rule 528.

      . Husband filed a Supplemental Cross-Bill of Complaint for an absolute divorce on the ground of voluntary separation in which he sought custody of the children. Wife answered praying that it be dismissed. The decree adjudged, ordered and decreed that Wife and Husband “be and they are hereby divorced a vinculo matrimonii. . . .”

      . Support for the children was ordered to be paid bi-weekly.

      . The statement erroneously gave the date of the Agreement as 9 September 1973.

      . Husband and Wife agreed in oral argument before us that the added phrase referred to refer to the period for payments to Wife and not to a time within which an action for an absolute divorce was to be filed.

      . Judge Powers noted: “Whether a wife may be ordered to pay alimony to a husband has not been decided by an appellate court in this State.” 18 Md. App. at 628, n. 1. It has now been decided by legislative enactment. Code, art. 16, § 3 formerly provided: “In cases where a divorce is decreed, -alimony may be awarded.” Acts 1975, ch. 332, effective 1 July 1975 added “to either spouse” at the end of the section. We note, however, that Code, art. 16, § 5 (a), proscribing the award of alimony “unless it shall appear from the evidence that the wife’s income is insufficient to care for her needs”, has not been amended so as to apply to an award of alimony to a husband. But see Code, art. 16, § 5A concerning award of costs and counsel fees in proceedings relating to children.

      . Acts 1975, ch. 849, amended art. 16, § 28, to ease the harsh rule found existent in Simpson. Section 1 of the Act provided that the court has the right to modify the agreement in respect to support, maintenance, property rights or personal rights between the husband and wife regardless of the manner in which the provisions are. expressed or stated unless the provisions of the agreement specifically state that they are not subject to any court modification. Section 2 further enacted that the Act “shall not be construed or interpreted to have any effect upon or application to any deed, agreement, or settlement, or any event or happening occurring prior to the effective date of this Act.” Section 3 made the effective date 1 January 1976.

      . Note la at this point read:
      “By amendment in 1950 of Section 38 of Article III of the Maryland Constitution payments for support provided _ in an agreement approved by a decree of court are, along with alimony, defined as not constituting a debt within the constitutional prohibition against imprisonment for debt. See Speckler v. Speckler, 256 Md. 635 261 A. 2d 466, Soldano v. Soldano, 258 Md. 145, 265 A. 2d 263 and cases there cited.”

      . “Technical alimony” and “non-technical alimony” are phrases used by the courts on occasion, and, we believe, tend to lead to confusion. The former is alimony. The latter is not alimony because it does not meet the strict test required of alimony. Although a money allowance not containing all the incidents of alimony may be incorporated in a decree of the court and to that extent may be deemed a judicial award, such allowance merely reflects the agreement of the parties and is in no sense “alimony”. The use of the word “alimony”, no matter how qualified, to describe such payments, is a misnomer.