author: MacDaniel, J.,

text:
    BETTY JEAN WRIGHT v. COMMERCIAL AND SAVINGS BANK
    [No. 932,
    September Term, 1981.]

      Decided April 12, 1982.

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

      Michael Bowen Mitchell for appellant.

      Stephen M. Waldron, with whom was T. Carroll Brown on the brief, for appellee.
   MacDaniel, J.,

delivered the opinion of the Court.

This case originated in the Circuit Court for Harford County when Betty Jean Wright (appellant) filed suit against Commercial and Savings Bank (appellee, hereinafter Commercial) and Verlon Cleveland Wright, her ex-husband, in a five-count declaration for damages arising out of Commercial’s compliance with an order from Verlon to remove her name from their joint checking account. Trial began before a jury on February 13, 1980, and at the end of appellant’s case on February 21, 1980, the trial judge granted Commercial’s "Motion for a Directed Verdict.” The case was submitted to the jury as to Verlon and a verdict of $150,000 in favor of appellant was rendered on February 22, 1980. Subsequent to post-trial motions filed by Verlon, a remittitur consent was filed by appellant and judgment absolute against Verlon for $75,000 was entered on May 26, 1980. Verlon filed a timely appeal to this Court which by order of this Court dated February 9,1982, was dismissed for failure to file briefs. In this appeal we are only concerned with appellant’s attack on the granting of the directed verdict in favor of Commercial.

Facts

Appellant and Verlon Wright had a checking account since 1964 at Commercial in the trade name of Level Building Supply, subject to the order of appellant or Verlon Wright. Following marital problems, Verlon, on June 16, 1976, went to Commercial and instructed Commercial to remove the name of appellant from the checking account, which Commercial did. Appellant went to Commercial in August 1976 and asked for a check in the amount of $500 to be drawn against Level Building Supply. Since appellant’s name was no longer on the account card, her request was denied. Appellant went to Commercial the following day, repeated her request, and was again rebuffed.

At oral argument, appellant abandoned her claims that the trial court committed reversible error in finding no breach of fiduciary duty and no wrongful dishonor, but relied solely on her contention that the appellee breached its contractual obligation to appellant.

The parties have agreed to the following facts:

1. The account opened in 1964 was a joint checking account with the right of survivorship, and that either party could withdraw part or all of the account at any time.

2. There was no other written evidence of the contractual relationship except that expressed on the signature card.

3. That the signature card did not contain any express language giving the Bank authority to honor a request by either party to strike the name of the other from the signature card.

4. The account contained $3,602.91 at the time appellant’s name was stricken from the signature card.

Thus, the question for determination can be stated as follows:

Does a contractual relationship that gives a joint depositor the right to withdraw the entire balance of a joint checking account also give a joint depositor the right to order the depository bank to remove the co-owner’s name from the joint checking account?

The parties to this appeal appear to have no disagreement as to the basic law that:

1. In reviewing the propriety of the granting of a motion for directed verdict the rule is that all evidence and inferences rationally drawn therefrom must be considered in the light most favorable to the party against whom the motion is made. Derby v. Jenkins, 32 Md. App. 386 (1976).

2. The relationship between a bank and its depositors is as stated in University National Bank v. Wolfe, 279 Md. 512 (1977), at 514-15:

"Almost a hundred years ago this Court found that the relationship between a bank and its depositor was 'perfectly well settled’. Hardy v. Chesapeake Bank, 51 Md. 562, 585 (1879). The relationship, which has been universally recognized, 5A Michie on Banks and Banking § 1 (1973), and consistently followed in this State to the present time, is that of debtor and creditor, with the rights between the parties considered as contractual, and derived by implication from the banking relationship unless modified by the parties. Sand & Gravel Corp. v. Hospelhorn, 172 Md. 279, 287, 191 A. 701 (1937); Terminals Co. v. Hospelhorn, 172 Md. 291, 298, 191 A. 707 (1937); Pritchard v. Myers, 174 Md. 66, 76, 197 A. 620 (1938); Magness v. Trust Co., 176 Md. 528, 531, 6 A. 2d 241 (1939); Union Trust Co. v. Soble, 192 Md. 427, 430-431, 64 A. 2d 744 (1949); Keller v. Frederickst’n Sav. Inst., 193 Md. 292, 296, 66 A.2d 924 (1949); Taylor v. Equitable Trust Co., 269 Md. 149, 155-156, 304 A. 2d 838 (1973).”

The dispute arises on how to apply the law. Appellant contends striking her name from the joint checking account without her consent or at least notice to her, was a breach of her contract with the bank. Conversely, appellee contends that this act is tantamount to one joint depositor withdrawing all the funds from the joint checking account and therefore no breach of contract occurred.

There are no Maryland decisions directly on point. We shall analyze the three Maryland cases cited by the parties:

(1) Mercantile Savings Bank v. Appler, 151 Md. 571 (1926) ;
(2) Sturgis v. Citizens National Bank, 152 Md. 654 (1927) ;
(3) Wetzel v. Collins, 170 Md. 383 (1936).

In Appier, husband and wife had a joint savings account with the bank, subject to the order of either, the balance at the death of either to belong to the survivor. No deposits or withdrawals could be made without the production of the passbook. Husband informed the bank that the original passbook had been lost, whereupon, without notification to the wife, the bank issued a duplicate passbook to the husband. In fact, the wife had the original passbook, and was unaware that husband had lied to the bank. Husband, with this duplicate passbook, withdrew all the funds from the joint account. Wife sued the bank for breach of contract. The Court agreed with the wife and found that the bank had breached its contract with her by failing to notify her of the actions of her husband. Other than to establish that the relationship between the bank and its depositors is a contractual one, this case is completely inapposite to the case at bar.

In Sturgis, Mr. Sturgis had a sizable sum in his own name deposited in a savings account at the bank. After advice from the bank he changed this to a joint account with his niece but subject to withdrawal only by himself. Shortly thereafter the bank suggested a change so that withdrawal could be made by both Sturgis and his niece, which was immediately done by him. After Mr. Sturgis’ death wife attacked claiming an invalid gift. The Court found the gift to be valid stating that "the depositor had full power to make the change, clearly intended that it should be made as it was, and so expressed himself.” Once again we see that this case is clearly inapposite to the case at bar.

In Wetzel, a joint savings account was opened in the names of "Miss Emma Collins in trust for herself and Alice H. Collins, joint owners, subject to the order of either, at the death of either to belong to the survivor.” Following the death of the joint owner, Alice Collins demanded the money. The passbook was found in the possession of the association, and it appeared that a line had been drawn through the name of Alice H. Collins, leaving only the name of Miss Emma Collins. The Court upheld the chancellor in ruling in favor of Alice Collins and said at 388:

"The chancellor, in our opinion, decided the ownership of the fund in favor of appellee for either of two reasons; one, that there had been no change in the account; the other, that there was no proof that either of the two parties had authorized it.”

The omission or want of any proof that the change was made by authority of any one having the power or authority so to do was decisive in that case.

However, Wetzel, at 387, stated:

"As the entry appeared originally on the passbook and the association’s ledger, the money or deposit was payable at the order of either the nominal trustee, Emma F. Wetzel, or the cestui que trust, Alice H. Collin. Whalen v. Milholland, 89 Md. 199, 43 A. 45; and Milholland v. Whalen, 89 Md. 212, 43 A. 43; Ghingher v. Fanseen, 166 Md. 519, 172 A. 75; Bollack v. Bollack, 169 Md. 407, 182 A. 317, and the cases cited in the two last named. On these authorities there can be no doubt of the right of either trustee or cestui que trust to so change the account as to appropriate to her own use all the money on deposit in this account, or to transfer it from the names of both into her own name, regardless of whose money it was. On the authority of the cases just cited, if the account had been undisturbed, it would be the absolute property of the appellee by right of her survivorship. If one puts it in the power of another to so dispose of her money, the courts have no way to protect her against the betrayal of her confidence or folly, whichever you may call it.”

M.L.E. Trusts, Chap. 10, § 286 "Subsequent Deposits and Withdrawals,” commenting on the holding in Wetzel, said:

"Where an account is subject to the order of either party, each has a right so to change the account as to appropriate it to his own use or to transfer it from the names of both into his own name, and the use to which a sum withdrawn was subsequently put is of no concern to the bank.” (Footnote omitted.)

We find further reference to the holding in Wetzel in 161 A.L.R. 71 (Power of one party to joint bank account to terminate the interests of the other), at page 92 under the subtitle "Striking name from account.” Here A.L.R. interprets the language in Wetzel to mean that one joint depositor has a right to strike the name of the other joint depositor from the joint account, as this amounts to no more than a withdrawal of all the funds from the account by one of the joint depositors.

We now review out-of-state cases that support appellee’s position.

In Hoffman v. Vetter, 192 N.E. 2d 249 (1962), Mr. Vetter and his first wife Louise held a joint account subject to the withdrawal of either, with the balance to belong to the survivor. Mr Vetter, after a divorce from Louise, had her name stricken from the account. Later, Mr. Vetter added his new wife as joint owner to this account. After Mr. Vetter’s death, the first wife, Louise, claimed the amount left in the joint account on the theory that Mr. Vetter had no right to remove her name without her consent. The Court held that Louise had no interest in the joint account and at 251 stated:

"When Wallace G. Vetter had his name placed on the ledger sheet, he in effect withdrew the then joint account, and made such account an individual bank account.”

The Court of Appeals of Kentucky in Bealert v. Mitchell, 585 S.W. 2d 417 (1979), was required to determine the ownership of five joint savings certificate accounts opened by Robert L. Erd and Aliene S. Erd. Mr. Erd on April 10, 1975, had Mrs. Erd’s name removed from all joint savings accounts in their names. An officer of the saving association required Mr. Erd to present a general power of attorney and also execute an instruction document before Mrs. Erd’s name was removed from the accounts. On August 14, 1975, Mr. Erd returned to the financial institution and requested that her name be removed from the same accounts and directed that they be placed in the name of his daughter by an earlier marriage. Although recognizing that Mrs. Erd consented to the withdrawal of her name, the Court stated at 418:

"It is our opinion that the power of attorney was not necessary because the language of the agreement between the parties clearly provided for the right to withdraw and all necessary rights directly related thereto.”

also on page 418 the Court said:

"Any interest Mrs. Erd had in the accounts was terminated by her husband when he removed her name from the accounts. This action was tantamount to a withdrawal of the funds. The record indicates that the only reason Mr. Erd did not withdraw the money from the accounts was to avoid the loss of interest and a penalty charge. We believe it is obvious that the right to withdraw encompasses the right to delete the name of another on a joint account.”

The Supreme Court of Arkansas addressed a similar issue in McEntire v. Estate of McEntire, 590 S.W. 2d 241 (1979). There J. L. McEntire maintained a checking account in his individual name, with sole authority to withdraw funds from the account. On December 13, 1975, a new signature card was executed by McEntire and his wife, permitting either to withdraw funds but retaining the account in the sole name of J. L. McEntire. In January 1976 McEntire caused a new signature card to be issued in his sole name withdrawing the authority of Mrs. McEntire to draw funds from the account. Subsequent to McEntire’s death, his wife brought suit against his estate and the bank to recover the funds on deposit in the account. The Court said at 243-44:

"The Bank was acting within its authority in permitting the removal of appellant as one authorized to draw funds from the account. The involved account was held in such a manner that J. W. McEntire (or Mrs. McEntire) could withdraw or receive payments or withdraw all funds therefrom, and any such payments made by the banking institution would be a complete discharge as to the amount paid. ... In addition, the Bank was under no legal duty to notify appellant that she could no longer withdraw funds....” (Emphasis in original.)

further on 244, the Court stated:

". . . it was thus unnecessary for Mr. McEntire to withdraw the funds and establish a new account as opposed to the course he followed in this instance. To require such would have been superfluous and equity regards substance rather than form. Davis v. Jackson, 232 Ark. 953, 341 S.W. 2d 762.”

The Colorado Court of Appeals, Division I, also addressed a case similar to the instant case, in Kacirek v. Mangan, 489 P.2d 342 (1971). In that case the decedent, subsequent to opening joint accounts, executed new signature cards with the bank in an attempt to remove Mangan as a person authorized to make withdrawal from the accounts and to place the accounts in his name individually. The Court held that in changing the account to his sole name the decedent performed an act which was tantamount to withdrawing all of the funds from the joint account and to placing them in his individual account.

The case cited by appellant as authority for her position is Siemanoski v. Union State Bank of South Chicago, 242 Ill. App. 390 (1926). Here, husband changed his individual bank account to a joint one with his wife, subject to the order of either, balance payable to the survivor. Later he had the bank strike his wife’s name from the account. Still later he then had the bank place his wife’s name back on the account. After the husband’s death the bank paid the balance in the account to the wife. The administrator of the husband’s estate sued the bank for wrongfully paying the balance to the surviving wife. The Court in Siemanoski found in favor of the bank by holding that the joint account had not been lawfully revoked in that the act of the husband in directing the bank to change the account was not equivalent to a withdrawal of the entire amount and a redepositing of the same.

Summary

We are here concerned with the effect of the act of one of the parties to a joint account (subject to the order of either, with balance to survivor) in causing the bank to strike therefrom the name of the other. The inquiry is whether the action taken is to be deemed equivalent to a withdrawal of all the money and a redeposit thereof to the individual account of the actor. Although we have found no case directly on point with the factual posture of the case at bar, we can say that the language of those cases reviewed are in disagreement as to the end result. We are persuaded by the language of Wetzelsupra, and those out-of-state cases relied upon by appellee and therefore adopt the position that the right of a joint depositor to withdraw all the funds from a joint account encompasses the right to delete the name of another on a joint account.

The trial court was correct in granting appellee’s motion for a directed verdict.

Judgment affirmed.

Appellant to pay the costs.

      . We recognize that the account was in the name of Level Building Supply and that appellant and Verlon Wright were not "owners” of the account, but merely accorded the privilege of withdrawal. The parties have treated the account as though Verlon and appellant were in fact the "owners”; we shall do the same. We do not indicate whether the result would be different if the account were treated as "business account” and the Wrights merely "users” of that account.

        . None of the cases cited as authority involve the striking of a name as was done in the case sub judice.


source: Caselaw Access Project

author: Pollitt, J.,

license: Public Domain

text:
    MARILYN D. SMITH v. STATE OF MARYLAND
    [No. 933,
    September Term, 1981.]

      Decided April 12, 1982.

      The cause was argued before Morton and Moore, JJ., and Richard M. Pollitt, Chief Judge of the First Judicial Circuit, specially assigned.

      A. Dwight Pettit for appellant.

      Philip M. Andrews, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, John R. Salvatore, State’s Attorney for Washington County, and Mary Ann Day, Assistant State’s Attorney for Washington County, on the brief, for appellee.
   Pollitt, J.,

delivered the opinion of the Court.

It has been said frequently by humorists that one of the more often told falsehoods of modern times is "the check is in the mail”. It is, by the very nature of such a statement, extremely difficult to prove its falsity by direct, positive evidence. As was done in this case, however, the falsity of such a statement is provable by circumstantial evidence.

On March 24, 1981, the appellant, Marilyn D. Smith, was convicted by a jury in the Circuit Court for Washington County (Wright, J.) of four counts of perjury. Concurrent sentences of two years confinement in the custody of the Division of Corrections were imposed on each count, the execution of the sentences suspended, and the appellant placed on probation. From those judgments she appealed to this Court.

Appellant raises five issues on appeal, as follows:

I. Does Maryland Rule 744 make an unconstitutional distinction by permitting an automatic right of removal in capital cases while requiring the showing that the suggestion of removal is based on reasonable grounds in non-capital cases?
II. Did the trial court abuse its discretion in denying removal in this case?
III. Did the trial court err in denying appellant’s Motion for Judgment of Acquittal?
IV. Did the trial court err in refusing to dismiss the third and fourth counts of the indictment on the grounds of duplicity?
V. Did the trial court’s instructions to the jury on verdict unanimity constitute plain error?

We shall answer all questions in the negative and affirm the judgments of the trial court.

The four counts of peijury listed in the indictment stem from testimony given by appellant on August 8 and 9, 1979, in an equity action filed against her by the Attorney General of Maryland. The equity trial was the culmination of an investigation of citizen complaints to the Consumer Protection Division of the Attorney General’s Office alleging, inter alia, that appellant had collected various sums of money from customers for furniture sold but never delivered and for which those customers were never given refunds. Two of the complaining witnesses in that action were Aubrey Berry and Mabel A. Farber.

Mr. Berry testified at the perjury trial that he had purchased a box spring and a reclining chair from appellant in 1978, for which his wife wrote a check for the full amount of $178.88. He never received either the furniture purchased or a refund from appellant. He had given substantially that same testimony before both the Special Master and the Chancellor (Corderman, J.) in the equity trial.

Mrs. Farber testified at the peijury trial that she had purchased furniture from appellant in 1978, for which she paid $100.00 in cash and $171.90 by check. She too had received neither furniture nor refund from appellant, and she too had given substantially the same testimony in the equity case.

The complete transcript of the equity trial was received in evidence, without objection, in the peijury trial.

Prior to the equity trial, both Berry and Farber had obtained judgments against appellant in the District Court of Maryland for Washington County. Certified copies of those judgments were received in evidence in the peijury trial. The Berry judgment was entered on November 21, 1978, and the Farber judgment was entered on October 13, 1978. Each of those documents shows that appellant was summoned by personal service but failed to appear and copies of both judgments were sent to her by the District Court. Both judgments remained unsatisfied at the time of the equity trial and at the time of the criminal trial.

It was established by Joseph Hamilton, Deputy Clerk of the Circuit Court for Washington County, that he had duly administered the oath to appellant on August 8, 1979, with the usual response.

Lucille Mowen, Court Reporter for Judge Corderman, testified that she had transcribed the proceedings in Equity No. 32,108. She then read into the record the various statements made under oath by appellant which gave rise to the charges of peijury.

The testimony of Mowen and the transcript indicate that when questioned by her own attorney at the equity trial about the refund to Berry, appellant responded, "I did return to him the money on February the 3rd.” When questioned by the Assistant Attorney General on cross-examination, appellant similarly responded, "... I sent him a check on February the 3rd...”. The Assistant Attorney General again probed this point when he later asked, "And you have sent Mr. Berry a check for $178.88?” Appellant responded, "Right.” When questioned by her own attorney about a refund to Farber, appellant stated, "We sent her a check on February the 3rd. Whether she used it or not, I don’t know.” When questioned about the Farber refund on cross-examination, she again replied, "We sent it February the 3rd, too.” The State contends that each of appellant’s representations made on direct and cross-examination constitutes a separate offense of perjury.

After her Motion for Judgment of Acquittal was denied, appellant testified in her own defense. She recalled testifying at the equity trial and stated that she did so to the "best of (her) memory.” Appellant testified at the peijury trial "to the best of (her) recollection”, she paid both Berry and Farber. She went on to state that she never intended to tell an untruth or to lie. She noted that she had never received the cancelled checks that she said she had sent to Berry and Farber. Before the close of her testimony, she again asserted that she had never told a "wilful untruth or misrepresentation”. On cross-examination, appellant had difficulty remembering the specifics, e.g. account number, etc., of her checking account, but again asserted that she had paid Berry and Farber. Appellant called as defense witnesses Robert Hyssong, delivery supervisor at the Hagerstown Post Office, to testify about the daily mail flow there and a number of witnesses to testify as to appellant’s character.

Further facts will be supplied as the need arises.

ISSUE I

Appellant first contends that Maryland Rule 744 is unconstitutional in that it draws a distinction between removal in capital and non-capital cases. Appellant argues that the distinction between the automatic removal provision in capital cases and the conditional removal provision in non-capital cases is an unconstitutional deprivation of her right to be tried by an impartial jury. Removal in a non-capital case is conditioned upon a showing that the accused cannot receive a fair trial in that particular jurisdiction. Rule 744 implements the provisions of Article IV, Section 8 of the Constitution of Maryland. That provision has been analyzed by several Maryland cases.

Judge (later Chief Judge) Gilbert, writing for this Court in Gibson, Tate & Austin v. State, 17 Md. App. 246, 300 A.2d 692 (1973), set forth the rationale for the distinction between the removal provisions when he stated at 257-258:

"We believe that the rationale of Johnson [v. Louisiana, 406 U.S. 356 (1972)] is applicable to the case at bar. There is nothing invidious in the Maryland Constitutional distinction between removal in capital and non-capital criminal offenses. The distinction serves as a means of preventing an abuse of removal and thereby facilitates, expedites, and reduces expense in the administration of criminal justice. That Maryland chooses to 'treat capital offenders differently’ does not violate 'the constitutional rights’ of those charged with non-capital offenses.”

Similarly, Judge Eldridge, writing for the Court of Appeals in Johnson v. State, 271 Md. 189, 315 A.2d 524 (1974), stated, at p. 194:

"The history of the removal provision, therefore, shows a shifting concern between having a broad right of removal and having a very limited right because of the abuse associated with requests for removal. The present constitutional language resulted from a desire to narrow the right because of the abuses shown. No other intent is revealed by the historical material.”

The rationale set forth above is just as applicable to Rule 744. While some prejudice might be inherent in any capital offense, it is not necessarily present in a non-capital offense. The trial court’s function is to examine the accused’s suggestion of removal to see whether there are reasonable grounds for it. That Rule 744 grants the judge the power and discretion to do so does not deprive a defendant of the right to a trial by an impartial jury.

ISSUE II

Appellant next alleges that the trial judge abused his discretion by refusing to grant a change of venue. The record discloses that on June 9, 1980, appellant filed a motion for removal on the basis of pretrial publicity. A hearing on the motion was held on July 15, 1980 before Judge John P. Corderman. Appellant testified she had seen people on the street who had called her a "crook” and that she had received "very nasty” phone calls since the equity trial. Also introduced at the hearing were newspaper articles about the equity trial and subsequent indictment for perjury. Included among the former was an article wherein the presiding judge at the equity trial likened appellant to a "barracuda, lying in waiting (sic) for some poor, unsuspecting fish to swim by and be devoured.” He went on to state that "(t)here was testimony from 20 consumers who swam by the door and were so devoured.”

The hearing judge denying the motion for removal stated:

"... (t)here has been no showing that voir dire would not result in a panel of Jurors being selected to try the case based solely on the evidence before them. There are a number of newspaper articles which have been submitted, all of them save one relate to a civil case tried last year and the publicity does not begin to amount to anything like the publicity which has surrounded other cases which have been tried in this jurisdiction in which Jurors have been empaneled who were able to try the case based solely on the evidence before them at that time. Therefore, the Court will deny the Motion for Change of Venue.”

Evidently some voir dire questions were propounded to the prospective jurors at commencement of the trial. However, neither the questions nor the responses appear in the record before us. No objections or exceptions are noted in the record. Counsel for the appellant indicated that he had no objection to the jury as empaneled.

Removal of a non-capital offense rests within the sound discretion of the trial court. Maryland Rule 744; Waine v. State, 37 Md. App. 222, 377 A.2d 509 (1977). Review on appeal, however, is limited to consideration of whether the party seeking removal has met the burden of showing that "he has been prejudiced by adverse publicity and that the voir dire examination of prospective jurors, available to him, would not be adequate to assure him a fair and impartial trial.” Waine, supra, 227.

Judge Mason, recently writing for this Court in Simms v. State, 49 Md. App. 515, 433 A.2d 1199 (1981), stated at 518-519:

"A party moving for a change of venue carries a heavy burden of satisfying the court that there is so great a prejudice against him that he cannot obtain a fair and impartial trial. Generally, in order to meet this burden, the defendant must show in non-capital cases '(1) that the newspaper article (or pretrial publicity) is prejudicial, (2) that a juror has read the prejudicial newspaper article (or otherwise been exposed to the prejudicial publicity), and (3) that the juror’s decision at the trial was influenced by that newspaper article (or pretrial publicity).’ Presley v. State, 224 Md. 550, 555, 168 A.2d 510 (1961), cert. denied, 368 U.S. 957 (1961); Waine v. State, supra, at 227.
Voir dire examination is usually a sufficient mechanism to insure that a defendant obtains a fair and impartial trial despite the pretrial publicity. United States v. Jones, 542 F. 2d 186 (4th Cir. 1976), cert. denied, 426 U.S. 922 (1977). This may be satisfied if each venireman empaneled indicates that he has not formed an opinion of defendant’s guilt or innocence as a result of the pretrial publicity or that the pretrial publicity would not 'in any way derogate from his ability to give the defendant a fair and impartial trial,’ as was done in the instant case.”

After a thorough examination of the record before us, we conclude that the pretrial publicity was not so inherently prejudicial as to require a change of venue prior to voir dire examination of potential jurors. Since the voir dire questions are not before us and since no objections or exceptions were noted, we cannot say that either the hearing judge or the trial judge abused his discretion in denying the motion for removal.

ISSUE III

Appellant next alleges the trial judge erred in denying her Motion for Judgment of Acquittal. She moved for judgment of acquittal at the close of the State’s case, alleging there was no independent evidence sufficient to corroborate the testimony of either Berry or Farber. In denying the Motion, Judge Wright stated that the unsatisfied judgments in the District Court provided sufficient corroboration. He reasoned that appellant was an experienced business woman; that she had knowledge of the judgments, entered in October and November of 1978; that (in substance) the jury was entitled to infer from those facts that she would have assured the satisfaction of those judgments had she in fact paid Berry and Farber in February of 1979, particularly in view of the pending suit by the Consumer Protection Division based, in part, on those same claims.

While it was primarily the duty of Berry and Farber to enter the judgments satisfied, we cannot say as a matter of law that the trial judge was wrong in his assessment of the reasonable inferences which could be drawn from the evidence. In any event, appellant then testified in her own defense and produced several other witnesses, thereby withdrawing her Motion. Maryland Rule 756. She renewed her Motion at the close of all the evidence and it was again denied. The jury then found her guilty of all counts.

The Constitution of Maryland, Declaration of Rights, Article 23, provides that "(i)n the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction.” This provision is further amplified by Code (1982 Replacement Volume) Article 27, Section 593:

"In the trial of all criminal cases, the jury shall be the judges of law, as well as of fact, except that at the conclusion of the evidence for the State a motion for judgment of acquittal on one or more counts, or on one or more degrees of an offense, may be made by an accused on the ground that the evidence is insufficient in law to justify his conviction as to any such count or degree. If the motion is denied, he may offer evidence on his own behalf without having reserved the right to do so, but by so doing, he withdraws his motion. The motion may be made at the close of all the evidence whether or not such motion was made at the conclusion of the evidence for the State. If the motion is denied the defendant may have a review of such ruling on appeal.

The function of the appellate court in reviewing such ruling is limited. It does not inquire into and measure the weight of the evidence to ascertain whether the State has proved its case beyond a reasonable doubt, but merely ascertains whether there is any relevant evidence, properly before the jury, legally sufficient to sustain a conviction. State v. Devers and Webster, 260 Md. 360, 272 A.2d 794 (1971); Wilson v. State, 261 Md. 551, 276 A.2d 214 (1971); Cranford v. State, 36 Md. App. 393, 373 A.2d 984 (1977).

The history of the crime of perjury and the evidence necessary to sustain a conviction thereof is rather complex and convoluted. Indeed, according to Pollock and Maitland, "(v)ery ancient law seems to be not quite certain whether it ought to punish perjury at all. Will it not be interfering with the business of the gods?” By the time of Coke, however, the crime was established and the elements well-defined:

"(t)he crime of wilful and corrupt perjury; which is defined by Sir Edward Coke, to be a crime committed when a lawful oath is administered, in some judicial proceeding, to a person who swears wilfully, absolutely, and falsely, in a matter material to the issue or point in question.”

Code (1982 Replacement Volume) Article 27, Section 435 embodies the common law definition of peijury, and also enumerates specific instances that constituted the common law crime of false swearing. Gatewood v. State, 15 Md. App. 314, 290 A.2d 551 (1972). Peijury has been defined by Maryland courts to be committed when the following elements are met:

1. a lawful oath is administered;
2. in some judicial proceeding;
3. when a person swears wilfully, absolutely and falsely;
4. to a matter material to the issue or point in question.

State v. Levitt, 48 Md. App. 1, 426 A.2d 383 (1981). As defined above, it is declaratory of the common law to which Maryland residents become entitled by virtue of the Declaration of Rights, Levitt, supra; Deckard v. State, 38 Md. 186 (1873).

The quantum of proof necessary to sustain a conviction is not as easily defined, however. Judge Marbury, writing for the Court of Appeals in Brown v. State, 225 Md. 610, 171 A.2d 456 (1961), appears to have set forth the general standard applicable in Maryland today. He states at 616-617:

"At common law it was originally held that to warrant a conviction of peijury the falsity had to be shown by direct and positive testimony of two witnesses. 7 Wigmore, Evidence, § 2040 (3rd ed. 1940). The rule has been said to be deeply rooted in past centuries having its inception in the Star Chamber. 7 id. §§ 2030 and 2044. Peijury was treated as a high misdemeanor which required a greater measure of proof than any other crime known to law, treason alone excepted.
However, the rule has been relaxed so as to allow a conviction of peijury to stand if there are two witnesses, or one witness corroborated by circumstances proved by independent testimony. 41 Am. Jur., Perjury, § 67; 70 C.J.S., Perjury, § 68. The testimony of one witness and other independent corroborative evidence must be of such a nature so as to be of equal weight to that of at least a second witness, thus foreclosing any reasonable hypothesis other than the defendant’s guilt. Weiler v. United States, 323 U.S. 606; United States v. Neff, 212 F. 2d 297; United States v. Nessanbaum, 205 F.2d 93; 70 C.J.S. § 60. It has been held that circumstantial evidence, including documentary evidence, springing from the defendant himself, may take the place of a "living witness”. United States v. Wood, 39 U.S. 430; United States v. Palese, 133 F.2d 600, United States v. Nessanbaum, supra; United States v. Flores-Rodriguez, 237 F.2d 405; United States v. Spaeth, 152 F. Supp. 216; People v. Doody, (N.Y.) 64 N.E. 807; Metcalf v. State, (Okla.) 129 P. 675; Mallard v. State, (Ga.) 90 S.E. 1044; State v. Storey, (Minn.) 182 N.W. 613; State v. Cerfoglio, (Nev.) 205 P. 791, and 213 P. 102; Miles v. State, (Texas) 165 S.W. 567; Marvel v. State, (Del.) 131 Atl. 317.”

Accord, State v. Devers and Webster, supra.

While the direct and positive testimony of two witnesses was necessary at common law to sustain a conviction of perjury, it was not necessary at early common law. There was no such rule in use in common law courts until the first half of the Eighteenth Century. 7 Wigmore, Evidence § 2040 (Chadbourn rev. 1978). In 1640, the Court of the Star Chamber was abolished and its jurisdiction transferred to the King’s Bench. Proceedings in the Star Chamber had always been conducted according to ecclesiastical or civil law. Ecclesiastical law required at least the direct and positive testimony of two witnesses in order to convict. Since the crime of perjury had been prosecuted almost entirely in the Star Chamber, it follows that the rule requiring two witnesses accompanied the transfer of jurisdiction to the King’s Bench. 7 Wigmore, Id. Since perjury was one of the few crimes in which the accused was allowed to testify, the rule gained acceptance in the common law court. If only one person’s testimony was offered against the accused, the situation would present oath against oath, or a "draw”. The quantitative theory of testimony, then, played a key role in the establishment of the rule. Professor Greenleaf recognized this principle in his Treatise On The Law Of Evidence (1842) at § 257:

"In proof of the crime of perjury, also, it was formerly held, that two witnesses were necessary, because otherwise there would be nothing more than the oath of one man against another, upon which the jury could not safely convict.”

The rule has been "relaxed” in most jurisdictions so as to allow a conviction to stand based on the testimony of one witness corroborated by circumstances sufficient to equal the weight of a second witness. This is what Brown explicitly states. Whatever purpose may have been served by the rule three hundred years ago, we agree with Wigmore that the rule is now "incongruous” in our present system of jurisprudence. 7 Wigmore, Id. at § 2041. As stated by Judge Thompson for this Court in Tipton v. State, 8 Md. App. 91, 99, 258 A.2d 606 (1969), while .refusing to extend the rule to attempted subornation of perjury:

". . . This State permits the testimony of one witness to support convictions for the most serious crimes, e.g., murder, Rasnick v. State, 7 Md. App. 564, 256 A.2d 543; rape, Charles v. State, 4 Md. App. 110, 241 A.2d 435; and armed robbery, Carroll v. State, 3 Md. App. 50, 237 A.2d 535. In the absence of binding authority, we perceive no reason to apply the two-witness rule to any part of attempted subornation of peijury under the facts of the case at bar.”

While the rule may continue to serve a practical purpose by preventing charges based solely on annoyance or retaliation, Commonwealth v. Broughton, 390 A.2d 1282 (Pa. 1978), we are not sure that this purpose outweighs the desirability of consistency in proofs for the various criminal offenses. State v. Storey, 148 Minn. 398, 182 N.W. 613 (1921).

In Brown v. State, supra, Rose Brown was convicted of perjury arising from testimony given in a civil case. Basically, Brown denied signing a confessed judgment note which was the subject of the civil proceeding. At the perjury trial, the State introduced the civil pleadings, the note and records and exemplars admittedly signed by Brown and used by a handwriting expert in his analysis. The handwriting expert testified that the signature appearing on the note and the signature on the other records and exemplars were one and the same. This was the substance of the State’s case. Brown’s motion for directed verdict was denied, and she presented evidence in her defense.

A motion for directed verdict was again denied at the close of the entire case. The Court of Appeals affirmed her conviction.

Judge Marbury cited numerous cases in the above-quoted passage in support of the proposition that "circumstantial evidence, including documentary evidence, springing from the defendant himself, may take the place of a 'living witness’.” Several of the cases cited require a more detailed explanation of their holdings. In People v. Doody, 172 N.Y. 165, 64 N.E. 807 (1902), the New York Court held that where the subject matter of the falsity is insusceptible of direct proof, circumstances, in and of themselves, may be sufficient to sustain a conviction of peijury without regard to the two-witness rule. Two subsequent cases, People v. Wright, 214 N.Y.S. 2d 461 (1961) and People v. Calandrillo, 215 N.Y.S. 2d 355 (1961), expanded the New York rule so that circumstantial evidence alone, whether or notthe falsity is susceptible to direct proof, is enough upon which to base a conviction of perjury. See 88 ALR 2d 852, 873.

Similarly, in Mallard v. State, 19 Ga. App. 99,90 S.E. 1044 (1916), the Georgia court, although the case is not reported in full, appears to have held that the two-witness rule is inapplicable "where proof of the crime is necessarily based on circumstantial evidence”. In Storey, supra, the Minnesota court sets forth a well-reasoned discussion of the two-witness rule before rejecting its applicability to instances where the crime is proven by circumstantial evidence. The Court states in its consideration of the rule:

"The question is a new one in this State, and we are at liberty to choose the rule which appeals to us as being more consonant with reason. Notwithstanding the high authority above cited, we are of the opinion that the rule (two witness rule) laid down is out of harmony with our system of jurisprudence ... We find ourselves unable to approve the doctrine that perjury is a more heinous crime than murder, or that one charged with perjury should have greater immunity than one charged with murder. Suppose, for example, the only eyewitness to a murder should testify that the accused is not the man who committed the crime, and yet the circumstantial evidence of guilt is so strong that the jury convicts of first degree murder. With what consistency can it be said that a quality of testimony which will justify a court in condemning a defendant to life imprisonment, or, in some jurisdictions, to be hanged, is insufficient to sustain a conviction of the falsifier of the crime of peijury, for which he may suffer a penalty of a short term of imprisonment? The lightness with which, we are pained to say, the oath of a witness is too often treated, does not warrant us in making conviction of the crime of peijury most difficult of all crimes of which state courts have jurisdiction. We hold that peijury may be proved by circumstantial evidence, if proof is made beyond reasonable doubt, as in the cáse of other crimes. Nor is this doctrine without authority to sustain it. Ex parte Metcalf, 8 Okla. Crim. Rep. 605, 44 L.R.A. (N.S.) 513, 129 Pac. 675. See People v. Doody, 172 N.Y. 165, 64 N.E. 807, 15 Am. Crim. Rep. 675, holding that the old rule has no application where the proof of the crime is necessarily based on circumstantial evidence.” 182 N.W. at 615.

While the situation confronted by the Nevada court in State v. Cerfoglio, 46 Nev. 332, 205 P. 791, reconsidered 213 P. 102 (1923), was somewhat different, the court intimated that where a "live” witness is presented, the rule may be applicable in order to prevent the "oath-against-oath” situation, but that where the State relies upon circumstantial evidence to secure a conviction, the circumstances must be inconsistent with the defendant’s theory of innocence. In Marvel v. State, 33 Del. 110, 131 A. 317 (1925), the Delaware Court, although recognizing the weight of authority was against it, held that circumstantial evidence alone is sufficient to justify a conviction, without any direct and positive testimony.

These cases are all cited with approval in Brown, as well they should be, for a thorough examination of Brown reveals that the conviction was based solely on circumstantial evidence.

The language in Brown that "The testimony of one witness and other independent corroborative evidence must be of such a nature so as to be of equal weight to that of at least a second witness, thus foreclosing any reasonable hypothesis other than the defendant’s guilt”, (emphasis added) was, at that time, the evidentiary standard by which the legal sufficiency of the evidence was to be measured where proof of guilt Was based solely on circumstantial evidence. Vincent v. State, 220 Md. 232, 151 A.2d 898 (1959); Brown v. State, 222 Md. 290, 159 A.2d 844 (1960); Williams and McClelland v. State, 5 Md. App. 450, 247 A.2d 731 (1968); Ramsey v. State, 5 Md. App. 563, 569, 248 A.2d 659 (1968).

In Brown, not one single witness testified directly and positively that he saw the defendant sign the note. There were handwriting samples to compare with the handwriting on the note. Further, there was the testimony from the expert witness that the signature on the note and the signature on the samples were the same. From this the jury could infer that the defendant signed the note, but there is no direct testimony that she did.

Although the circumstances may be stronger in Brown, the same principle applies here. Berry and Farber testified that they did not receive the checks appellant claimed to have sent them. The unsatisfied judgments from the District Court were entered into evidence, from which the jury could infer appellant knew they were unpaid. Further, as in Brown, the jury had the opportunity to observe appellant’s demeanor and attitude on the stand, and could form its own opinion as to her veracity. Brown, supra, at 617. See 60 Am. Jur. 2d, Perjury § 64 (1972).

As set forth by this Court in Nichols v. State, 5 Md. App. 340, 247 A.2d 722, cert. denied 253 Md. 735 (1968) and further explained in Metz v. State, 9 Md. App. 15, 262 A.2d 331 (1970), Streat v. State, 11 Md. App. 543, 275 A.2d 537, cert. denied 262 Md. 750 (1971), and Robinson v. State, 18 Md. App. 678, 308 A.2d 734, cert. denied 269 Md. 765 (1973), a conviction based on circumstantial evidence requires no greater degree of certainty than one based on direct evidence. In either instance, the trier of fact must be convinced of defendant’s guilt beyond a reasonable doubt. The State need not disprove every theory or hypothesis of innocence. Although there was no direct and positive testimony that appellant did not, in fact, send the checks to Berry and Farber, there was sufficient evidence from which the jury could find appellant’s guilt beyond a reasonable doubt.

As stated by the Court of Appeals in Brown at 617:

"We need not undertake to determine what may be the proper rule today as to the quantum of proof of peijury which would be required in other circumstances. On the evidence in this case we hold that the ... evidence [the Court of Appeals then reciting the circumstantial evidence set out above] (was) all properly submitted to the jury for its consideration. In addition, the appellant testified in her own behalf and the jury was thus able to observe her demeanor on the stand and judge the credibility of her testimony. If the evidence offered was believed then the jury was entitled to conclude that appellant’s testimony, under oath, — was wilful and false. —”.

The mandate of Brown is clear. Pursuant to mandate, we explicitly hold that where the State produces and relies upon circumstantial evidence, that circumstantial evidence in and of itself may be sufficient for a conviction of perjury, and the two witness rule is not applicable. It remains for the Court of Appeals or the General Assembly to determine the continued validity of the rule in other circumstances.

ISSUE IV

Appellant contends that Counts 3 and 4 should have been dismissed since they allege the same offenses as those charged in Counts 1 and 2. At the equity trial she testified on direct examination that she had sent checks to Berry and Farber. Counts 1 and 2 charge her with perjury for those statements. On cross-examination, appellant again asserted that she had sent the checks to Berry and Farber, giving rise to Counts 3 and 4. Appellant says the same lie told twice pursuant to one oath is one perjury. The State says the same lie repeated several times after one oath is several perjuries. Neither of them cites any authority, each being content to rely on the general definition of perjury in State v. Levitt, supra.

There is a split of authority in jurisdictions which have considered the issue of whether several false statements made in the same proceeding constitute one perjury or several perjuries. Compare Black v. State, 13 Ga. App. 541, 79 S.E. 173 (1913) and State v. LaBarre, 114 Ariz. 440, 561 F.2d 764 (1977). We have been referred to no Maryland case on point. It would appear that the gravamen of the offense is the false statement of the accused, not the oath that she takes, but we need not make that decision.

In imposing sentence in this case, the trial judge said, "(E)ach of these convictions arose out of the same civil proceedings and therefore the Court is running the Counts 2 through 4 concurrently with Count No. 1.”

Under the concurrent sentence doctrine, "the existence of a valid concurrent sentence removes the necessary elements of a justiciable controversy.” Jennings v. State, 8 Md. App. 312, 319, 259 A.2d 543 (1969). The error, if any, has caused no prejudice to the appellant. See United States v. Lent, 432 F.2d 440 (4th Cir. 1970); Marks v. State, 230 Md. 108, 185 A.2d 185, cert. denied 373 U.S. 918 (1962); Thomas v. State, 2 Md. App. 645, 236 A.2d 747, cert. denied, 249 Md. 733 (1967).

ISSUE V

Appellant finally asks us to invoke the provisions of Maryland Rule 757 (h) and find plain error in the instructions to the jury that a verdict of either guilty or not guilty must be unanimous, despite the fact that she made no objection to those instructions as required by Maryland Rules 757 (f) and 1085.

The instructions given were not error. They were entirely correct. Coby v. State, 225 Md. 293, 297,170 A.2d 199 (1961); McKay v. State, 32 Md. App. 451, 362 A.2d 666 (1976), affirmed 280 Md. 558, 375 A.2d 228 (1977).

For the reasons stated:

Judgment affirmed. Appellant to pay the costs.

      . Attorney General of Maryland v. Marilyn Smith T/A Smith Furniture Company, Equity No. 32,108, in the Circuit Court for Washington County, Maryland. Affirmed in part and reversed in part by this Court in Marilyn Smith, T/A Smith Furniture Co., et al. v. Attorney General of Maryland, 46 Md. App. 78, 415 A.2d 651 (1980).

      . Rule 744 states:
      "Rule 744. Removal,
      a. Capital Cases.
      When a defendant is charged with an offense for which the maximum penalty is death and a party files a suggestion under oath that he cannot have a fair and impartial trial in the court in which the case is pending, the Court shall order that the case be transmitted for trial to another court having jurisdiction. A suggestion filed by a defendant shall be under his personal oath. A suggestion filed by the State shall be under the oath of the State’s Attorney.
      b. Non-Capital Cases.
      When a defendant is charged with an offense for which the maximum penalty is not death and a party files a suggestion in compliance with the requirements of section a of this Rule, the court shall order that the case be transmitted for trial to another court having jurisdiction only if it is satisfied that the suggestion is true or that there is a reasonable ground for it. A party who has obtained one removal may obtain further removal pursuant to this section.”

      . While this language appears somewhat intemperate, the newspaper article was a factual report of that portion of the equity trial and was published on the last day of that trial, August 11, 1979, some 19 months prior to the criminal trial.

      . When ruling on the Motion for New Trial, Judge Wright said:
      "This Court took pains to examine the Juiy Panel on voir dire. It elicited from those who indicated that they may be partial, response from those jurors. The Jury Panel was chosen from those persons who did not indicate any preconceived idea about the case from the standpoint of either the State or the Defendant. The voir dire certainly cured any possible prejudice because of pre-trial publicity.”

      . Maryland District Rule 603 provides: "The clerk shall enter any judgment satisfied upon the order in writing of the holder of the judgment and shall file such order among papers in the action upon payment of costs...”.

      . Pollock and Maitland, History Of The English Law, 539 (2d Ed. 1911).

      . 4 W. BLACKSTONE Commentaries* 137.

      . 2 Taylor on Evidence (6 Ed 1872) § 654, is quoted as saying: "In the Ecclesiastical Courts, the rule requiring a plurality of witnesses is carried far beyond the verge of common sense. According to the Canon Law, it seems that in the case of a Cardinal charged with incontinence, the probatio, in order to be plena, must be established by no less than seven eye-witnesses.”
      One may speculate that the rule possibly had its genesis in the law of Moses, where it is said: "At the mouth of two witnesses, or three witnesses, shall he that is worthy of death be put to death; but at the mouth of one witness he shall not be put to death.” The Holy Bible, King James Version; Deuteronomy, Chapter 17, Verse 6.

      . The State is in error when it says the question was not raised below. Appellant moved at the beginning of the trial to dismiss Counts 3 and 4 as "repetitive”. That motion was denied by the trial judge.

      . Not only did appellant not object to the instruction; she requested it. Her Request for Instruction 6 asked the court to instruct the jury "that the verdict must be unanimous and that each juror must agree with the verdict of guilty or not guilty.”


author: Bishop, J.,

text:
    JOHN C. CHILDS, SR. et al. v. FRANK P. RAGONESE et al.
    [No. 953,
    September Term, 1981.]

      Decided April 12, 1982.

    The cause was argued before Mason,  Couch and Bishop, JJ.

      Neil Tabor for appellants.

      Nathan Patz, with whom was Alan A. Abramowitz on the brief, for appellees.
   Bishop, J.,

delivered the opinion of the Court.

The appellants, John C. Childs, Sr. and Paradise Joint Venture (Childs) sued the appellee, A. J. Billig & Company, Auctioneers (Billig) for the recovery of a commission which Billig deducted from a deposit paid to Billig by a third party purchaser at a public auction. The trial court ruled in favor of Billig. On appeal Childs asks, inter alia, whether an auctioneer is entitled to a commission when the listing contract states that the commission is earned if the auctioned property is "sold”, a sales contract is signed by a bidder, but the successful bidder defaults on the sales contract.”

For the reasons set forth in this opinion we affirmatively answer the appellants’ question and hold that Billig is entitled to its commission.

The Facts

Childs owned a 163.85 acre parcel of land situated in Harford County. Desiring to sell this land, Childs entered into an auctioneer’s contract with Billig. This contract stated in pertinent part:

"We hereby employ A. J. BILLIG & COMPANY, duly licensed Auctioneers, as Our exclusive Agents to sell either by public or private sale Our property as above described. This exclusive employment is to continue for a period of 30 days. If the said property is sold during the life of this contract by the said Auctioneers or by the Owners, or through any other agency or broker, or if the owner during the life of this contract should withdraw the property prior to its offering, the said owners, in consideration of the acceptance of such employment by said Auctioneers, hereby agree to pay said Auctioneers a commission on the amount for which the property is sold, or, if said property be withdrawn from sale, a commission on the above price [$246,000.00] for said property, according to the rates printed on the reverse side hereof, plus all advertising costs not to exceed the sum of $1500.00, which advertising costs shall also be paid by the owners. In the event the property is offered at public auction and is not sold because of an inadequacy of bid or bids, owners shall pay to the Auctioneers for such public auction offering a fee of $750.00, plus such advertising costs. Executed at Baltimore, Md. on 11/8 1977.”

The contract provided for a commission rate of 5 percent.

A public auction was held on November 30, 1977. The higher bidder was Parkview Construction Company (Parkview) which bid $245,775.00. At the close of bidding, a sales contract was signed by Childs and Parkview and a $20,000.00 check, payable to the order of Frank P. Ragonese (Ragonese), Parkview’s principal stockholder, and endorsed by Ragonese to Billig, was paid as a deposit on the purchase price. By the sales contract the parties acknowledged that Parkview "purchased” the property and paid a deposit, with the balance of the purchase money to be paid in 60 days. The sales contract also provided that "all rents, taxes and expenses [were] to be adjusted to date of sale.”

Billig deducted from the $20,000.00 deposit the sum of $802.38 for advertising expenses and $12,228.75 as a commission equal to 5 percent of the sales contract price of $245,775.00, and remitted to Childs a check for $6,908.87.

By.a letter dated February 9,1978, attorney, Neil Tabor, notified Billig that he represented Childs, "the Seller of an 163.85 acre parcel . . . which was sold at auction by your firm on November 30, 1977.” Mr. Tabor informed Billig of the failure of Parkview to make settlement and requested that Billig remit the $12,288.75 of the $20,000.00 paid by Parkview "as a deposit at the time of sale.” Billig responded by a letter dated February 10, 1978 that the "custom and usage in the auction profession,” and under the listing contract, did not require an auctioneer to return its commission in the event of a purchaser’s default.

In subsequent litigation against Ragonese, Parkview, and Billig, a settlement was reached between Childs, Ragonese and Parkview. After a hearing on the claim against Billig, the Superior Court of Baltimore City, by an order dated June 29, 1981, entered judgment for Billig.

Auctioneer’s Commission

The trial court based its ruling on a finding that "Billig, although an auctioneer, comes within the purview” of Md. Real Property Code § 14-105. This statute provides that real estate brokers are entitled to their commissions when a sales contract is executed between the owner and prospective buyer procured by the broker. The trial court found that the appellee came "within the purview of the statute” and that the appellee was entitled to his commission "upon the full and complete execution” of the contract of sale.

The appellants contend that the trial court’s ruling that the appellee was covered by Md. Real Property Code § 14-105 was erroneous and the ruling itself must be vacated. We agree that the lower court was in error in its reasoning, however, we hold that the court did not err in ruling for Billig, and we affirm that ruling, modifying only its rationale. Freestate Land Corporation v. Bostetter, 292 Md. 570, 440 A.2d 380 (1982).

Although the appellee held the license of a real estate broker, he acted only in the capacity of an auctioneer, and auctioneers are explicitly excepted from the Code’s only definition of the term "real estate broker.” Maryland Code Ann., Art. 56, § 212 (f) (8).

The appellants strongly rely on Wyland v. Patterson Agency, Inc., 271 Md. 617, 319 A.2d 308 (1974). In Wyland the Court of Appeals held that if § 14-105 did not apply under the facts of the case, then a broker was not entitled to receive a commission when a sales contract was executed, but only when the contract was consummated, id. at 625. The Court of Appeals based its decision on the extensive body of law concerning real estate brokers which developed prior to the statutory change.

Because Billig’s reliance on the law applying to real estate brokers is not apposite, we find that the analysis of the present case must be based on the law concerning auctioneers, and on the interpretation of the auction listing contract between the parties. As recited above, this listing contract had a 30 day duration, during which time Billig was obligated to conduct an auction. If, at the auction, inadequate bids were received, the property would be deemed "not sold” and Billig would be entitled to a fee of $750.00 plus costs. If the owner withdrew the land from sale, Billig would be entitled to 5 percent of the agreed price of $246,000.00. If the land was "sold during the life of this contract,” then Billig would have earned 5 percent of that sales price. In this case, a successful auction by Billig resulted in a binding sales contract between Parkview and Childs, during the 30 day "life” of the listing contract. Based on our examination of the law concerning auctioneers, we are convinced that by the execution of the sales contract by the buyer and its acceptance by the seller, Billig earned the $12,228.75 commission.

Case law directly supporting our conclusion is sparse. With no Maryland authority on point, the appellee’s argument rests primarily on distinguishing the law affecting real estate brokers from that concerning auctioneers. The appellee also relies on the uncontroverted claim that "custom and usage” within the profession entitle auctioneers to commission at the time of the execution of a sales contract. See Archway Motors, Inc. v. Herman, 37 Md. App. 674, 378 A.2d 720 (1977), in which Billig previously relied on its standard listing contract. See also Small v. Ciao Stables, Inc., 289 Md. 554, 555-556, 425 A.2d 1030 (1981), in which an auctioneer’s commission was a percentage of the accepted bid.

In the law concerning auctioneers, customs must be considered in determining the effect of a transaction. Corbin on Contracts § 108.

An auctioneer is customarily entitled to commissions if he is the procuring cause of a sale, even if, without his fault, the contract of sale is rescinded or abandoned. Linkous v. Harris, 134 Va. 63, 113 S.E. 831, 834-835 (1922), cited in 7A C.J.S. Auctions & Auctioneers § 22b. This general rule has been applied to permit auctioneers to obtain commissions after the auction when the vendor was unable to convey title. Shopen v. Bone, 328 F.2d 655 (8th Cir. 1964). In Shopen, supra at 659, Circuit Judge Mehaffy concluded that it would be "grossly incongruous” for the receipt of the commission to be made dependent on the closing of the sales contract merely because the auctioneer was given the authority to close the sale.

The appellants refer us to the North Carolina Supreme Court decision of Horney v. Mills, 189 N.C. 724, 128 S.E. 324 (1925) as supporting their proposition that commissions do not accrue until a sale is effected or until a bid is fully complied with. From the text of Horney v. Mills, 128 S.E. at 326, appellants quote:

"The primary purpose of the contract... is the sale of land by the plaintiff for defendant, and compensation by the defendant to the plaintiff for the full and final performance of the contract. Commissions are due and payable only at the close of sale. It appears from the complaint that no sale was made, and therefore, no commissions were due by defendant to plaintiff.”

Although this reference appears to the appellants to support their case, an examination of the complete text of Associate Justice Connor’s opinion reveals that "the contract” being discussed in the quotation was not the contract of sale between the buyer and seller of land, but was the listing contract between the auctioneer and the land owner. In Horney v. Mills, supra at 326, no commission was earned by the auctioneer because he "failed to get purchasers and bidders” for the land owner at the agreed minimum price.

The appellants also cite a more recent ruling of an Illinois appellate court which ordered an auctioneer to return a withheld commission obtained at a real estate auction. In Bank of Silvis v. Boultinghouse Auction Co., 71 Ill. App. 3d 98, 389 N.E.2d 267 (1979) the listing contract drafted by the auctioneer explicitly provided that the auctioneer would receive a commission of 3 percent of total proceeds, "said commission to be paid from the first proceeds of the sale.” Id, 389 N.E.2d at 268. The trial court in Boultinghouse determined that the auctioneer earned 3 percent of the bid price, despite the purchaser’s default; however, the appellate court reversed, ruling that by the terms of the contract, the auctioneer had limited itself to earning 3 percent of the proceeds "actually received in hand,” to wit: the down payment paid at the auction. See DeFranceaux Realty Corp. v. Leeth, 283 Md. 611, 618, 391 A.2d 1209 (1978) in which a similar "proceeds” clause was held to make settlement a condition precedent to payment of a broker’s commission. As the appellee correctly asserts in its brief, these decisions are distinguishable from the present case where the auctioneer did not limit the source of its commission to the proceeds of the sale.

In the absence of restrictive terms in the auctioneer’s listing contract, the commission is earned, not by a consummated sales contract, but by the auctioneer’s procurement of a bona fide bid acceptable to the owner. Rountree v. Todd, 210 Ga. 226, 229, 78 S.E.2d 499 (1953); Roberts v. Todd, 120 Ga. App. 444, 170 S.E.2d 862 (1969). This conclusion is especially compelled when the accepted bid results in the making of an executory binding contract by which the realty is to be sold to a purchaser obtained by the auctioneer. See Leonard v. Fallas, 335 P.2d 665, 668 (Calif. 1959).

We hold the lower court’s conclusion that the appellants failed to produce sufficient evidence that Billig breached its fiduciary duty to the appellants was not clearly erroneous. Md. Rule. 1086.

For the above-stated reasons we affirm the judgment of the lower court.

Judgment affirmed; costs to be paid by the appellants.


author: Lowe, J.,

text:
    DENNIS R. TAYLOR v. MAYOR AND CITY COUNCIL OF BALTIMORE et al.
    [No. 981,
    September Term, 1981.]

      Decided April 12, 1982.

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

      John J. Dilli, Jr., for appellant.

      L. William Gawlik, Assistant City Solicitor of Baltimore City, with whom were Benjamin L. Brown, City Solicitor of Baltimore City, and Sheldon H. Press, City Solicitor of Baltimore City, on the brief, for appellees.
   Lowe, J.,

delivered the opinion of the Court.

This appeal is expressly limited to an Order of the Baltimore City Court dated May 28, 1981. The order appealed from denied appellant’s motion for a new trial of an administrative appeal to that court, which had affirmed the decision of a claims examiner of the Fire and Police Employees Retirement System. Although the original appeal from the Claims Examiner’s decision to the Baltimore City Court questioned findings of fact, as well as construction of law by the Examiner, appellant’s motion for new trial was limited solely to the court’s construction of the retirement laws regarding disability benefits. By appealing from the order denying his motion, not only does appellant limit himself to that which was addressed upon that motion, Carter v. State, 286 Md. 649, 651 (1979), but he places the burden upon himself of convincing this Court that the trial judge abused his discretion in denying the motion for new trial. His gamble was successful. The judge did abuse his discretion by misconstruing the law applicable to the case and sustaining the construction by the Claims Examiner as a proper interpretation of the law. We will remand this case to the Baltimore City Court, directing it to remand to the Claims Examiner for a determination of appellant’s entitlement to benefits under proper construction of the law.

Appellant, Dennis R. Taylor, had been employed as a Baltimore City fire fighter since July 20, 1970. On January 5, 1978, he suffered an injury to his left elbow. According to a Statement of Undisputed Facts, appellant applied for a "special” disability retirement on October 3,1979. His application was denied.

When appellant’s condition worsened, he apparently filed a subsequent application (but it is not in the record before us). The Claims Examiner decided that

"the claimant is physically incapacitated for further performance of the duties of his job classification in the employ of Baltimore City”,

and that the incapacity "is considered to be permanent”. While permanent incapacity is required for either an "ordinary” or "special” disability retirement, the Examiner denied the more remunerative "special” disability claim, because the incapacity

"is still not considered to be totally incapacitating based on the medical evidence.”

Presumably for the reason that the incapacity was "not... totally incapacitating”, the Examiner decided that appellant

"is ineligible for Special Disability Retirement but is eligible for Ordinary Disability Retirement.”

The Claims Examiner’s opinion was affirmed upon appeal by an opinion of the Baltimore City Court on April 23, 1981 which was modified by an opinion dated May 28, 1981, denying the motion for a new trial. Erroneously assuming in both opinions that appellant’s incapacity had been found by the Examiner to have been "sustained in the performance of his duties ..the judge addressed a single issue of statutory interpretation. He pointed out that the two relevant sections in Article 22 of the Baltimore City Code relating to disability retirement benefits are § 34 (c) and § 34 (e); the former dealing with "Ordinary disability retirement benefits” read (prior to 1979) as follows:

"Section 34 (c).
Ordinary disability retirement benefit. Any member who has acquired five (5) or more years of service and who has been determined by a claims examiner to be mentally or physically incapacitated for the further performance of the duties of the member’s job classifícation in the employ of Baltimore City, and that such incapacity is likely to be permanent, shall be retired by the Board of Trustees on an ordinary disability retirement, not less than thirty (30) and not more than ninety (90) days next following the date of filing his application for ordinary disability retirement benefits.” (Emphasis added).

In 1979, the following language was added:

"For all claimants who became members of this system on or after July 1, 1979, and have been determined to be qualified for an ordinary disability benefit, the following shall be applicable:
If the claims examiner determines that the member has suffered any permanent disability which prevents the member from the further performance of the duties of the member’s job classification in the employ of the City of Baltimore, the City shall within thirty (30) days of the expiration of the appeal period as provided in Section 33(1), or, if an appeal is taken, within thirty (30) days of the final determination of all appeals, refer the member to the Civil Service Commission for vocational counseling and job evaluation to determine whether the member is suitable for re-employment with the City in another position at the same rate of compensation as he was receiving in his last position.
During the period such member is being counseled, he shall temporarily receive the ordinary disability benefits under this section until such time as the Civil Service Commission has determined that either the member is suitable for re-employment in another position or that the City cannot offer any alternative employment. If the determination by the Civil Service Commission is that the member is re-employable, the member shall either be re-employed within one year and the award of ordinary disability benefits terminated, or else the member shall be retired on ordinary disability retirement subject to the other provisions of this subtitle. If the determination by the Civil Service Commission is that the member is not re-employable, the member shall be retired on ordinary disability retirement subject to the other provisions of this subtitle.”

The briefer section dealing with "Special disability benefits” was, and remains, as follows:

"Section 34 (e).
(e) Special disability benefits. Any member who has been determined by the claims examiner to be totally and permanently incapacitated for the further performance of the duties of his job classification in the employ of Baltimore City, as the result of an injury arising out of and in the course of the actual performance of duty, without willful negligence on his part, shall be retired by the Board of Trustees on a special disability retirement.” (Emphasis added).

In his May 28 opinion, the judge simply explicated the conclusion implied in the decision of the Claims Examiner that the only substantial distinguishing feature of the two sections was that § 34 (e) expressly requires that a claimant be "totally” incapacitated for the further performance of the duties of his job classification, while § 34 (c) does not use that adjective "totally”. The judge recognized, however, that prior to 1979, when the Board of Trustees of the Employees Retirement System of Baltimore City was hearing such cases, it had interpreted the term "incapacitated” to mean "totally incapacitated”,

"when it was the Board’s responsibility to make the determinations, it passed over the 'total’ incapacity language and focused on the 'in the course of the actual performance of duty, without wilful negligence ...’ language. This is a reasonable interpretation because the dictionary definition of 'incapacity’ includes the concept of 'totally’ within its scope, so that it could be argued that there is no substantive difference between 'incapacity’ and 'total incapacity’. It would then follow under this view that the only difference between Subsections (c) and (e) is the 'in the course ... of duty’ or not 'in the course ... of duty’ distinction in fact adopted by the Board.”

He raised for recognition the

"well established rule of law in Maryland that the consistent and long-standing interpretation of a statute by the agency charged with its enforcement is 'strongly persuasive’ and should not be disregarded except for 'weighty reasons,’ ”

then lowered it as inappropriate because

"the administrative interpretation will not be considered unless the statute in question is ambiguous on its face. Atlantic, Gulf and Pacific Company v. State Department of Assessments and Taxation, 252 Md. 173, 249 A.2d 180 (1969).”

Referring in part to the 1979 amendment to the "ordinary” disability provision, § 34 (c), noted above, the judge explained that

"as of July 30, 1979, the City Council changed the system somewhat. The responsibility for hearing claims and making determinations thereon was vested in a group of Claims Examiners appointed for that purpose. Subsection (c) was amended by the addition of a provision requiring claimants found eligible for 'ordinary’ benefits under that subsection to be referred to the Civil Service Commission for vocational counseling and job evaluation.”

He pointed out that since their assumption of responsibility for hearing claims,

"[t]he evidence indicates that the Claims Examiners have interpreted the difference between Subsections (c) and (e) to rest not on the 'in the course ... of duty’ or not 'in the course ... of duty’ distinction but, rather, on a 'total’ incapacity or less-than- 'total’ incapacity distinction. The Claims Examiners appear to interpret the 'in the course of the actual performance of duty, without wilful negligence ...’ language to be a minimum requirement for 'special’ disability benefits rather than a litmus test between Subsections (c) and (e). The shift of emphasis would be consistent with the addition of the vocational counseling and job evaluation provision because a claimant who is less than 'totally’ incapacited could reasonably be referred for such counseling and evaluation, whereas it would make no sense to refer a 'totally’ incapacitated claimant for vocational counseling and job evaluation. It is also reasonable to conclude that the City Council meant to require all less-than- 'totally’ incapacitated claimants to be referred for vocational counseling and job evaluation regardless of whether their incapacity resulted from the performance of duty or not.”

He concluded:

"Therefore, this Court finds that while it was formerly the practice to automatically award 'Special’ disability benefits under Subsection (e) to claimants injured in the line of duty, this is no longer the case. Since Appellant has not disputed the Claims Examiner’s finding of fact that he is not 'totally’ disabled, this Court must affirm the Claims Examiner’s determination that Appellant is not entitled to 'special’ disability benefits under Article 22, Section 34 (e), of the Baltimore City Code.”

In his initial opinion of April 23, the judge commenced his deliberative conclusion by acknowledging that:

"In construing this statute, this Court must first look to its plain language. Only when the language is ambiguous does a Court need to look to the intent of the legislature and consider the overall legislative scheme. Koyce v. State Central Collection Unit, 289 Md. 134 (1980).”

He then conceded that

"in ordinary usage 'incapacitated’ means 'totally incapacitated’ unless otherwise modified,”

which, from his prior recognition of the law, seemingly obviated both the need and the right to seek legislative intent. He added, however, that

"this meaning does not appear to have been intended by the legislature in drafting the statutes in question.”

He provided two reasons for discerning a legislative meaning contrary to what seemingly appeared unambiguous to him. That which compelled him to ignore the "plain language” earlier acknowledged was that

"the legislature took the trouble to draft two separate subsections, one dealing with claimants found to be 'mentally or physically’ incapacitated, and one dealing with claimants found to be 'totally’ incapacitated. The two subsections provide for different levels of retirement benefits. In the present case, Appellant would, under Subsection (c), receive, tax free, twenty-six (26) percent of his former salary or, under Subsection (e), tax free, sixty-six and two-thirds (66%) percent of his former salary. In addition, Subsection (c) requires that a claimant found to be permanently disabled must be referred to the Civil Service Commission for vocational counseling and job evaluation to determine whether he is suitable for re-employment with the City. Subsection (e) [special disability] makes no such provision, assumingly because there is no point in referring a 'totally’ incapacitated person for vocational counseling.”

Our review of the statute compels our disagreement with the interpretation of the Baltimore City Court in this instance. We are persuaded more by its opinion in Hackley v. Mayor and City Council of Baltimore, et al., Baltimore City Court, File No. 1-105843, Docket 25P/9 (April 1, 1981), wherein (we are told by the judge in this case)

"the Court found that there is no real difference between Subsections (c) and (e) with respect to the level of disability required. The Court [in Hackley] reached this conclusion by finding that the dictionary definition of 'incapacity’, unless the word is modified in its scope, includes the concept 'totally’. Therefore, a finding that a claimant is 'incapacitated’ is the same as a finding that a claimant is 'totally’ incapacitated.”

In particular regard to appellant’s claim, initially we must note that because it preceded the 1979 amendment, it should have been judged upon the construction of the statute as it was intended at that time. The judge held that the Board’s interpretation prior to 1979 was reasonable at that time, and he further acknowledged that such long-standing administrative interpretation should not be disregarded except for weighty reasons. Apparently, however, the "weighty reason” that caused him to reject the Board’s interpretation for the more recent views of the newly appointed claims examiners was the 1979 amendment relating to vocational rehabilitation counselling and job evaluation, which coincided with the creation of the examiners. Thus, even if that analysis of post-1979 legislative intent had been accurate, the judge would still have been wrong in not applying the pre-1979 interpretation that he found reasonable prior to the amendment.

Even if the former version applied, the 1979 amendment accords with the entire statutory scheme and altered its purpose not one whit. To the contrary, it enlarged upon it by setting forth a procedure for vocational counselling, providing a better opportunity for reemployment of its tenured incapacitated employees in other city job classifications.

The judge’s analysis of legislative intent of the post-amendment statute was inaccurate. Both he and the Claims Examiner read far too much into the fact that § 34 (e) used the redundant adjective "totally”, while § 34 (c) did not. Such reasoning, like the maxim "expressio unius est exclusio alterius”, is not a rule of law but is merely an auxiliary application of logical analysis to assist in determining legislative intent. Such auxiliary aids should be used with caution and should never be applied to override a more obvious purpose or visible scheme. Cf. Kirkwood v. Provident Savings Bank, 205 Md. 48, 55 (1954). In this instance, to apply such logic would implicitly inject into § 34 (c) the adjective "partial” or some synonymous modifier for the negative-transitive verb "incapacitated”, which the judge conceded means "totally incapacitated ... in ordinary usage ... unless otherwise modified.” Not only have we been repeatedly admonished by the Court of Appeals that, in construing statutes, words must be interpreted according to their common acceptance (e.g., Balto. Bldg. & Constr. Trades v. Barnes, 290 Md. 9, 15 (1981); Parkinson v. State, 14 Md. 184,196-197 (1859)), we are told with equal consistency that we may not insert or omit words to make a statute express an intention not evidenced in its original form. Amalgamated Ins. v. Helms, 239 Md. 529, 535 (1965).

The facts found by the Claims Examiner upon which the judge predicated his statutory interpretation were that the claimant was:

"incapacitated for further performance of the duties of his job classification.”

That finding carried the claimant over the first hurdle of entitlement in either section since the identical language is in both. She then held that the "incapacity is considered to be permanent”. That finding is also a requisite for entitlement to either special or ordinary benefits, carrying the claimant over the second hurdle.

The Examiner’s (and ultimately the judge’s) reason for denying the special benefits was that the incapacity "is still not considered to be totally incapacitating ....” This would contradict the prior finding unless it was intended to imply that the claimant was being denied special benefits because, although he was incapacitated from "the performance of the duties of his job classification,” he was still employable in some other type of employment, or under some other job description.

Assuming that is what the Examiner meant, and is the predicate for the court’s analysis, we fail to see where either section of the statute requires that the claimant be incapacitated from performing any work, other than that which is within his job classification. In fact, by placing a limit on how much he may earn in addition to his benefits, § 34 (g) (2) contemplates that upon disability retirement (in either category) the retiree may work elsewhere.

The judge’s interpretation of this statute was similar to the scheme of the Workmen’s Compensation Statute, Md. Ann. Code, Art. 101, which provides both for those who are totally disabled as well as those partially so as a result of their employment. But there the Legislature clearly explicated both scheme and purpose, without courts having to inject words or omit them as surplusage. Here, the judge not only injected a modifier by implication (the concept of "partial” incapacity), but omitted the limiting object of the key transitive verb "incapacitated” in one section, giving the same phrase emphasis in the other section. In order to reach the result that § 34 (e) (Special Disability) required total incapacity to perform any job (which his interpretation provided), the judge necessarily ignored or discounted the prepositional phrase following "incapacitated,” which provided its object:

"for the further performance of the duties of his job classification ....” (Emphasis added).

Before words in a statute may be rejected as surplusage, however, it must be certain that the Legislature could not possibly have intended the words to be in the statute, and that the correction of them serves merely as a correction of careless language and actually gives the true intention of the Legislature. Pressman v. State Tax Commission, 204 Md. 78, 90 (1954).

In interpreting § 34 (c) (Ordinary Disability), however, the identical phrase was not ignored. To the contrary, it was emphasized. Only by omitting the prepositional phrase in § 34 (e) and inserting the modifying adjective in § 34 (c) could the court have arrived at the Workmen’s Compensation-type-scheme it applied. But, as already noted, we may not surmise a legislative intention contrary to the words and letters of a statute, or insert or delete words with a view of making the statute express an intention which is different from its plain meaning. Fowel v. State, 206 Md. 101, 105-106 (1955); Welsh v. Kuntz, 196 Md. 86, 93 (1950). Nowhere does it appear, by express reference or by implication, that the legislative body intended to provide any benefit for a partially disabled person. The criteria in both sections speak in absolutes. The test is whether he can or cannot perform "the duties of his job classification”. If he is " 'incapacitated’ for the performance” of these duties, he may qualify for either ordinary or special benefits, but unless he is so incapacitated, he qualifies for neither. The statute does not refer to an incapacity to perform less than all of the duties of his job classification in either section. There are no "degrees” of incapacity referred to anywhere in the statute. The prefix "in” clearly connotes a negation of the root meaning of the term "capacitated”, which we must assume was purposefully used by the lawmakers. One who is incapacitated is without capacity. That which he is without capacity to do is the performance of the duties of his job classification. The legislative body expressed no concern for providing benefits to those whose disability may partially limit the degree of performance of their dangerous jobs. It sought to retire those who no longer could perform the rigorous duties.

Although the relative insignificance of an elbow injury hardly comports with the Examiner’s, the judge’s — or with our — philosophical concept of full retirement benefits when one is obviously able to work productively at another job, this does not justify either court in reaching a result not clearly intended by the enactors of the statute. In fact, similar concerns appear to have been addressed by the legislators in § 34 (g) (2).

Whether we approve of the right to seek other employment subject to that limitation is not a matter of judicial concern. It is the Legislature’s responsibility to establish policy. It would be dangerous and unwarrantable for a court to grope for an intent, or to make one from its own ideas of policy and morals, and on that ground say that a particular case is withdrawn from the operation of the plain and unambiguous language of a statute. Hawbecker v. Hawbecker, 43 Md. 516, 519 (1876).

But thus far we have primarily addressed an issue which the statute did not; i.e., the comparison between partial and total incapacitation. While the distinction in the legislative scheme was not in the degree of capacity, there are two dissimilar criteria for entitlement which were coupled with common requisites of incapacity, evidencing the purpose behind the enactments. The two distinguishing and unrelated elements from which the legislative scheme is gleaned are that

in § 34 (c), referred to as "ordinary” disability benefits, entitlement depends upon tenure (i.e., at least five years of service); and
in § 34 (e), referred to as "special” disability benefits, entitlement depends upon an injury in the performance of one’s duties, without regard to length of service.

Conforming to its underlying tenure-related purpose, the "ordinary” benefits are computed by a formula which provides compensation in direct proportion to an employee’s years of service. If the incapacitated employee of five or more years is fifty years old, he will receive a service retirement allowance; otherwise his first twenty years of service entitles him to one-fortieth of his average final compensation and one-fiftieth for every year thereafter § 34 (d) (2). The "special” benefits for the employee injured on the job, on the other hand, are a fixed two-thirds of his salary without regard to length of service either for entitlement purposes or amount, § 34 (f) (2). Clearly, the two sections have diverse criteria; one section allows tenured employees to retire when they are no longer able to perform their duties, while the other affords retirement benefits to those who suffer injuries in the performance of their hazardous jobs.

Because the statute is clear and unambiguous, we hold that the judge abused his discretion by interpreting the statute contrary to the clear legislative scheme. Bouse v. Hutzler, 180 Md. 682, 687 (1942). We will, however, remand this case because, despite the judge’s expression to the contrary, the Examiner did not make a finding whether the appellant’s incapacity was "the result of an injury arising out of and in the course of the actual performance of duty, without wilful negligence on his part.” Both parties assumed the truth of this fact in their briefs, and in the Statement of Undisputed Facts submitted to us in the joint record extract. We are not factfinders, however, and leave this crucial issue for the Claims Examiner’s determination by an expressed holding. That, of course, is essential to entitlement to special disability benefits.

We reverse the judgment of the court and remand the case to it in accord with the agreement of both parties at oral argument. We direct that the court remand to the Claims Examiner who will provide a rehearing of the case in light of the proper construction of the statute. Obviously crucial to that hearing will be the requirements of the appellant’s job classification (which were not in this record) as a guide to determine appellant’s capacity or incapacity to perform the duties within that classification.

Judgment reversed.

Case remanded to the Baltimore City Court for its compliance with this opinion.

Costs to be paid by the appellees.

      . In the present case, appellant would be entitled to receive sixty-six and two-thirds (66%) percent of his former salary tax free if he were found to qualify for "special” disability benefits. On the other hand, based on a formula involving tenure, he would only be entitled to receive approximately twenty-six (26) percent of his former salary tax free under the "ordinary” disability benefits.

      . Applied by the judge when reasoning that the 1979 amendment provided for vocational evaluation to the ordinary disability group, § 34 (c), and not to the special disability retirees, § 34 (e).

      . "§ 34 (g) Re-examination of beneficiaries retired on account of disability.

        (2) A disability retiree may, without reduction of his retirement allowance, earn annually an amount, hereinafter referred to as 'earnings,’ equal to the rate of the annual compensation being paid currently to persons in the same grade and step as the retiree was at the time of his retirement, plus the amount of any longevity payments currently being paid for the length of service the retiree had at the time of his retirement, said rate of compensation plus longevity payments, if any, hereinafter referred to as 'base amount’. Should such a retiree earn an annual amount which is greater than his base amount, the pension otherwise payable to him shall be reduced in the following manner: For the first $5,000 of earnings in excess of the base amount a reduction of $1.00 in pension benefits shall be made for each $2.00 earned. For any earnings in excess of $5,000 over the base amount, a reduction of $2.00 in pension benefits shall be made for each $5.00 earned. In the calendar year of retirement the base amount shall be prorated on a monthly basis. Benefits which may be payable to a beneficiary of a deceased disability retiree under the provisions of this subtitle, shall not be reduced by reason of any excess earnings by said retiree, and the base for calculating said beneficiary’s benefits shall be the total unreduced retirement allowance of the disability retiree, not withstanding he had been receiving a reduced retirement allowance in the year of his death. The term 'earnings’ as used in this subsection shall mean income derived from wages, salaries, tips, commissions, other employee compensation, and self-employment. In all cases of doubt the Board of Trustees shall decide what is and is not 'earnings’ for the purposes of administering the provisions of this subsection. An ordinary disability retiree who became a member of this system before July 1, 1979, and any special disability retiree who has not been certified as fit to perform duties in the classification in which he was performing duties at the time of his retirement may, nevertheless, accept suitable employment with the City, subject to the 'earnings’ provision contained herein; provided, however, that such an employee shall not again become a member of any retirement system supported in whole or in part by the Mayor and City Council of Baltimore.”

      . "§ 34 (d) Allowance on ordinary disability retirement. Upon retirement for ordinary disability a member shall receive a service retirement allowance if he has attained the age of fifty; otherwise he shall receive an ordinary disability retirement allowance which shall consist of:
      (2) A pension which, together with his annuity, shall provide a total retirement allowance equal to one-fortieth of his average final compensation for each of the first twenty years of service, and one-fiftieth of his average final compensation for each year after the first twenty years of service; ...”

      . "(f) Allowance on special disability benefits. Upon retirement for special disability a member shall receive a special disability retirement allowance which shall consist of:
      (2) A pension, in addition to the annuity, of sixty-six and two-thirds percent of his average final compensation; and ...”