text:
    J. C. PENNEY CO., INC. v. IVA LEOTA HARKER
    [No. 62,
    September Term, 1974.]

      Decided October 16, 1974-

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

      William D. Appier, with whom were William N. Zifchak and Carr, Bonner, O’Connell, Kaplan & Thompson on the brief, for appellant.

      John Barry Kelly, II, with whom were Donahue & Ehrmantraut on the brief, for appellee.
   Orth, C. J.,

delivered the opinion of the Court.

The question- in this case is whether a trial judge has revisory powrer over a judgment for damages after a default judgment fixing liability has become enrolled. The trial judge here believed that he did not have such power. We think he was wrong.

I

On 30 October 1973 a judgment by default for want of a plea was entered in the Circuit Court for Montgomery County in favor of Iva Leota Harker in her action in tort to recover damages for personal injuries suffered by reason of the negligence of J. C. Penney Co., Inc. On 7 December, upon inquisition, the judgment was extended by the assessment of damages in the amount of $15,180.90 with interest and costs. Penney’s motion to set aside the judgments, filed 12 December, was denied on 4 January 1974. Penney noted an appeal on 7 January.

It appears from the record that Penney was served through its resident agent on 12 March 1973. The suit papers were sent to Penney’s insurer, the Travelers Insurance Company, on 9 April. On 18 April Harker agreed to an extension of time to plead so that settlement negotiations could proceed. The negotiations were unsuccessful, and on 13 July Harker suggested that Travelers turn the matter over to its counsel for the filing of a plea. On 26 September Harker wrote Travelers that the filing of a motion for judgment by default was being considered. On 25 October, hearing nothing in the interim, Harker filed a motion for a default judgment for want of a plea and mailed a copy to Penney’s resident agent. The copy of the motion was sent by the resident agent to Penney and by Penney to Travelers, reaching the office of its claims manager on 5 November. Judgment by default had been entered six days before, on 30 October. It seems that the claims manager, unaware of the entry of the default judgment, prepared to send the case to counsel for response to the motion, but by a clerical error, the letter of transmittal was placed in the claims manager’s file and was not mailed. When it was discovered what had happened, more than 30 days from the entry of the default judgment had elapsed. The inquisition to assess damages was held on 7 December. Penney failed to appear. An assistant in the office of the Clerk of the Court made affidavit that she had sent a notice of the hearing on damages to the resident agent of Penney. An affidavit of Travelers’ assistant claims manager, however, stated that he was unaware of such notice. Five days after the judgment for damages had been entered, Penney moved to set it aside, and the motion was denied on 4 January 1974 after a hearing.

II

An “Order for Appeal” was filed by Penney on 7 January 1974. It directed the Clerk to enter an appeal “from the Judgment in favor of plaintiff, against J. C. Penney Co., Inc., entered in this action on December 7, 1973; and from the Order of the Court on January 4, 1974, denying defendant’s motion to set aside the judgment of December 7, 1973, and to grant a new trial on damages.”

The appeal was timely with respect to both the judgment for damages entered on 7 December 1973 and the order of 4 January 1974. Maryland Rule 1012. The 30th day from 7 December 1973 was 6 January 1974, a Sunday, and, therefore, not to be included in the computation of the required time. Rule 8. Penney, however, presents only one question on the appeal:

“Whether the trial court abused its discretion under Maryland Rule 625 a in refusing to reopen an unenrolled, ex parte judgment for damages, where the court concluded that because the earlier default judgment on liability had become enrolled it ‘has no authority’ to set aside the unenrolled award of damages.”

Penney does not directly attack the judgment for damages in its argument. Although it believes that the assessment was excessive, it recognizes that ordinarily excessive damages are not a matter for review by the appellate court. Raines v. Boltes, 258 Md. 325; Carl M. Freeman Associates, Inc. v. Murray, 18 Md. App. 419. It expressly declares in its brief that it does “not press that point.” We, therefore, limit our consideration to the propriety of the denial by the court below on 4 January 1974 of the motion to set aside the judgments. See Rule 1046 f.

Ill

The motion denied by the court below on 4 January 1974 was filed 12 December 1973. It was entitled “DEFENDANT’S MOTION TO SET ASIDE DEFAULT JUDGMENT”. It moved “that the judgment by default entered in this cause on October 30, 1973, be set aside, and defendant permitted three (3) days within which to file a responsive pleading to the declaration” and “In the alternative, should the court, in its discretion, refuse to set aside the judgment by default of October 30, 1973, defendant requests that the default judgment in the amount of $15,000 entered on December 7, 1973, be set aside, and the case rescheduled for hearing on damages.”

Rule 625 a provides:

“For a period of thirty days after the entry of a judgment, or thereafter pursuant to motion filed within such period, the court shall have revisory power and control over such judgment. After the expiration of such period the court shall have revisory power and control over such judgment, only in case of fraud, mistake or irregularity.”

(i)

It is firmly settled that Rule 625 a applies to all final judgments including judgments by default for want of a plea. Owl Club v. Gotham Hotels, 270 Md. 94, 100-101; Maggin v. Stevens, 266 Md. 14, 16-19. But the revisory power of the trial court over the default judgment here expired at the lapse of 30 days from its entry on 30 October 1973, there being no suggestion of fraud, mistake or irregularity. We note that there was no obligation on the part of Harker to inform Penney of an intention to obtain a default judgment. See Rule 306 b; Maggin v. Stevens, supra, at 18. We hold that in the circumstances Rule 625 a provided no basis to set aside the judgment by default.

(Ü)

A judgment fixing liability, but leaving to the future the assessment of damages, may be obtained by default, Rule 310, by summary judgment procedures, Rule 610, and upon a separate trial on the issue, Rule 501 a. See Rule 648 — “Inquisition — After Interlocutory or Default Judgment.”

It once was that a judgment fixing liability was not final for appeal purposes if it was not extended. This is still the rule if such judgment is obtained under summary judgment procedures or upon a separate trial on the issue of liability. Knight v. Tolson, 10 Md. App. 311, and decisions of the Court of Appeals therein cited and quoted at 313-314. See Burns v. Goynes, 15 Md. App. 293; 304-306. But, for reasons not readily apparent, the rule has been changed with respect to such a judgment obtained by default. The Court of Appeals held in Himes v. Day, 254 Md. 197, 206, that a judgment by default is a final judgment as to liability and, as such, was appealable when entered with no necessity to be extended by the assessment of damages prior to taking an appeal. See Berwyn Fuel & Feed Co. v. Kolb, 249 Md. 475. In Maggin v. Stevens, supra, at 16, the Court of Appeals observed that Himes “. . . unequivocally answered any possible question on this point by concluding that such a judgment was appealable when entered and need not have been extended prior to taking an appeal.” It pointed out, at 17, n. 2: “The holding of this case apparently overrules a number of earlier decisions which held that a judgment by default was not final for appeal purposes if it was not extended. See Sharp v. Bates, 102 Md. 344, 349, 62 A. 747 (1905); Davidson v. Myers, 24 Md. 538, 554-55 (1866); Heffner v. Lynch, 21 Md. 552 (1864); Green v. Hamilton, 16 Md. 317 (1860); 2 Poe, Practice, § 372 (Tiffany’s ed. 1925).”

Although the default judgment here was immediately appealable, there was no timely appeal noted. The short of it is that the default judgment entered on 30 October 1973, as far as the parties here were concerned, became impregnable at the lapse of 30 days from its entry. Penney so conceded at the hearing on the motion to set aside the default judgment, its counsel stating with respect to the judgment of 30 October 1973: “. . . as to that one thirty days has gone by. We are out of luck.” The default judgment fixing liability stands valid.

(iii)

We turn to a consideration of the denial of the trial court of that part of the motion of 12 December 1973 going to the assessment of damages.

(a)

Harker urges that the motion sought only to set aside the default judgment entered on 30 October 1973. We do not read it that way. We think that the alternative relief sought went to the judgment for damages entered 7 December 1973. And it is clear that the court below included the judgment for damages in its consideration of the motion and ruled thereon. The order as typed read that the motion was denied “Upon consideration of the defendant’s Motion to Set Aside Default Judgment and plaintiffs Opposition thereto, and the court being apprised of all the circumstances . . . The court interlined after the word “Judgment” the phrase “or in the alternative to set aside the judgment for damages.”

We conclude that the matter of setting aside the judgment for damages was before the trial court, was there tried and decided, and is properly before us on appeal.

(b)

It is obvious from the remarks of the trial judge at the hearing on the motion that he believed he had no power to set the judgment aside, and that he predicated his denial of the motion on that’ ground. That is. he refused to set aside the judgment, not in the sound exercise of judicial discretion, but because he thought he had no authority to do so. He said he was “in great sympathy with the lawyer who dropped the ball”, but added: “You give me a case that precludes me from doing anything.” He noted at one point that he did not know “whether I have got any [discretion] to exercise or not”, and then observed: “If I give you a new trial on damages, it would be tantamount to a default judgment on the liability.” When Penney’s counsel said that he was not precluded by a default judgment from securing a new trial on damages, the judge replied: “That would practically be the same.” The judge explained: “It seems to me if I granted you a new trial on the question of damages, . . . although if there is a default judgment on liability, you may come in and show that the proximate cause of the injury was not as a result of the accident.” When counsel argued that the court had revisory power over the judgment for damages for a period of 30 days after its entry pursuant to Rule. 625 a the judge disagreed in these words: “It [the Rule] does not say anything about damages. If I set it aside, I would be settling some new law. Do you have any precedents?” Counsel tried to explain that there were two judgments involved, the judgment fixing liability and the judgment assessing damages. As to the first, “We are out of luck”, the revisory period of grace having expired. But as to the judgment for damages, he urged, the court had discretion to set it aside as within the 30 day period specified by Rule 625 a. The judge was not convinced. He said: “The Court finds it is the view of the Court that it has no authority to set aside either the default judgment or money damages. Therefore, the motion is denied.” i

The trial judge was mistaken in two basic aspects. His fear that the question of Penney’s liability could be raised again upon a rehearing of the inquisition was ill founded. The Court of Appeals firmly closed that door in Millison v. Ades of Lexington, 262 Md. 319. It held, at 328-329, that those who fail to plead within the required time and thus permit judgment by default on the issue of liability to be entered against them are foreclosed from contesting their liability when inquiry is made into the amount of damages. The holding stemmed from the finality of the default judgment. The Court said, at 328:

“A judgment by default, while it may require extension by way of proof of damages, Rule 648, is still final in respect of the question of the liability of the party against whom it is obtained. Himes v. Day, 254 Md. 197, 206, 254 A. 2d 181 (1969); Smith v. Dolan, 170 Md. 654, 657, 185 A. 453 (1936); Loney v. Bailey, 43 Md. 10, 15 (1875); Green v. Hamilton, 16 Md. 317, 329 (1860); and 2 Poe, Pleading and Practice § 372 (5th ed. Tiffany 1925). ‘Like every other judgment, it is conclusive of every fact necessary to uphold it. Freeman on Judgments, sec. 330 * * Heyward v. Sanner, 86 Md. 19, 21, 37 A. 798 (1897). This Court cannot go behind the judgment by default to examine into and determine upon the validity of the cause of action upon which suit is instituted, Stansbury v. Keady, 29 Md. 361, 368 (1868), and any testimony offered to contradict liability is inadmissible, Betz v. Welty, 116 Md. 190, 195, 81 A. 382 (1911).”

See Marine Midland Trust Co. v. State National Bank, 268 Md. 503, 510-511. Quoting 2 Poe, Pleading and Practice § 369 (5th ed. Tiffany 1925) relative to inquisition, the Court adopted the opinion hazarded by Mr. Poe on the question whether a defendant against whom a judgment by default has been declared in an action upon a written instrument will be permitted, upon the hearing of the inquisition, to offer evidence to show the invalidity of the instrument sued on. Poe observed that strictly and logically, such testimony would contradict the fact established by the judgment. He opined that “. . . it would be held inadmissible.” 262 Md. at 328.

The trial judge was also mistaken in his belief that a judgment for damages was not within the contemplation of Rule 625 a. The Court of Appeals said in Maggin v. Stevens, supra, at 16, that the Rule is applicable to all final judgments. A judgment for damages assessed upon inquisition is a final judgment. The Court of Appeals in Owl Club v. Gotham Hotels, supra, made amply clear that such a judgment is within the ambit of the Rule. It had little doubt, in that case, that had a motion been filed to set aside the judgment for damages before the expiration of the 30 day period designated by the Rule “. . . the judgment would have been set aside and that the court would have ordered the inquisition to be tried de novo.” 270 Md. at 101. The motion here was filed during the period of 30 days after the entry of the judgment, and, therefore, the trial judge had revisory power and control over it and could have set it aside in the sound exercise of its discretion. Penney was entitled to the exercise of the trial court’s sound discretion as to whether the judgment for damages should be set aside and the inquisition tried de novo. We find that it did not receive that to which it was entitled.

IV

Such part of the order of 4 January 1974 denying the motion to set aside the default judgment entered 30 October 1973 is affirmed. Such part of said order denying the motion to set aside the judgment for damages entered 7 December 1973 is reversed. The cause is remanded for a hearing on the merits of the motion to enable the trial court to exercise its judicial discretion to determine whether the judgment for damages should be set aside and the inquisition to assess damages reheard. Of course, the judgment entered 30 October 1973 fixing liability, stands in full force and effect.

As to the order of J January 197 denial of the motion of 12 December 1973 with respect to the judgment entered 30 October 1973 affirmed; denial of the motion of 12 December 1973 with respect to the judgment entered 7 December 1973 reversed; case remanded for farther proceedings in accordance with this opinion; each of appellant and appellee to pay 1/2 costs.

      . See Peroti v. Williams, 258 Md. 663, 669 and Burns v. Goynes, 15 Md. App. 293, 305, for a discussion of the distinction between “liability” and “negligence”.

      . The question is, in substance, the same as that presented by Harker: “Whether the trial court, under Maryland Rule 625 a, erred in refusing to ' set aside an ex parte hearing on damages.”

      . The exact amount, as we have indicated, was $15,180.90.

      . Rule 611, as adopted effective 1 July 1974, however, provides:
      “Upon the entry of judgment by default or decree pro confenso, pursuant to Rule 310 b, for failure to plead in response to original process, the clerk shall mail forthwith, notice thereof to the defendant at his address, if any, specified in the pleadings and shall note such fact on the docket or case file. If no address is specified and the address is otherwise unknown, this Rule shall not apply.”

      . Maggin and Berwyn were decided without need for reference to Rule 605, relating to the finality of a judgment which is entered on less than all claims, and includes less than all defendants. Picking v. State Fin. Corp. 257 Md. 554; Frericks v. Baines, 16 Md. App. 343. In Himes, however, Rule 605 was discussed. It seemed to hold, at 205, that where there are multiple claims against multiple parties arising out of one cause of action, a default judgment fixing liability as to less than all parties or less than all claims is not immediately appealable, but where the claims against the individual parties are independent and separate claims, such a judgment fixing liability as to one or more of the plaintiffs according to their responsive right to relief and against one or more of the defendants according to their respective liability is immediately appealable.
      We gather from the cases decided by the Court of Appeals that with respect to a default judgment fixing liability as to all claims and all parties, the judgment is appealable when entered and need not be extended prior to filing an appeal, but such a judgment when obtained by summary judgment procedures or by separate trial is not appealable until judgment as to damages has been entered. Further a judgment fixing liability obtained by default is appealable when entered even though determining less than all claims or affecting less than all parties, where the claims against the multiple parties are independent and separate claims as distinguished from multiple claims against multiple parties arising out of one cause of action. We are unable to suggest a sound rationale for the distinctions.


source: Caselaw Access Project

author: Thompson, J.,

license: Public Domain

text:
    JOSEPH JOHNSON v. STATE OF MARYLAND
    [No. 64,
    September Term, 1974.]

      Decided October 16, 1974.

      The cause was argued before Thompson, Gilbert and Menchine, JJ.

      Norman N. Yankellow, District Public Defender, and Arnold M. Zerwitz, Assigned Public Defender, for appellant.

      James G. Klair, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, James L. Bundy, Assistant Attorney General, Milton B. Allen, State’s Attorney for Baltimore City, and Mark VanBavel, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Joseph Johnson, appellant, was convicted by a jury in the Criminal Court of Baltimore of first degree murder and sentenced to life imprisonment. Johnson appeals that conviction and raises the following contentions:

1) that the trial court erred in admitting hearsay evidence which placed the appellant at the scene of the crime on the night of its occurrence;
2) that the trial court erred in excluding statements made by the Assistant State’s Attorney in a previous prosecution for the same crime which were relevant to the credibility of appellant’s former testimony;
3) that the trial court erred in refusing to allow the Assistant State’s Attorney to be called as a witness;
4) that the evidence was not sufficient to justify a conviction of murder in the first degree; and
5) that there was insufficient corroboration of appellant’s prior judicial admissions to sustain a conviction.

I FACTS

On the evening of January 8, 1972 Gaston Ashley was shot and killed in the Sportsman’s Bar in Baltimore City. As a result of the police investigation of the homicide the appellant’s brothers, Milton Johnson and Jerry Johnson, were indicted for Ashley’s murder.

On February 16, 1972, the appellant met with his attorney, who was also retained to represent his brothers, an Assistant State’s Attorney and two Baltimore City homicide detectives in the State’s Attorney’s office. He gave them a written statement in which he admitted killing Ashley but in which he claimed to have been acting in self-defense. On the evening of the 16th a line-up was arranged. The appellant and his two brothers were placed in the line-up along with three other men. The appellant was not identified by any of the witnesses at the line-up. His brothers Milton and Jerry Johnson were identified. Subsequently on February 25, 1972, a homicide charge which had been lodged against appellant was dismissed upon the advice of the Deputy State’s Attorney.

The appellant’s brothers were tried for Ashley’s murder in October 1972 and were acquitted. At that trial appellant testified that he had shot the deceased in self-defense. After his brothers’ acquittals the appellant was re-charged with Ashley’s murder.

At the appellant’s trial, the State called Officer David Rohlfing of the Baltimore City Police Department. Officer Rohlfing testified that on the night of Ashley’s murder he conducted an investigation at the Sportsman’s Bar; that at the time of the investigation there were fifteen people in the bar; that no gun was recovered; and that there were two eyewitnesses to the shooting, Roslynn Massie and Doris Lowe.

The crucial portion of the State’s proof was the aforementioned testimony of the appellant at his brothers’ trial in which he admitted killing the deceased, claiming to have acted in self-defense. Appellant’s counsel objected to the admission of this testimony and claimed that the appellant had not testified voluntarily. A hearing on the objection was held out of the presence of the jury and the objection was overruled.

The appellant’s former testimony was read into the record from a partial transcript of his brothers’ trial by the court reporter. Appellant’s counsel again objected to the admission of the transcript and claimed that it was incomplete in that several pages were not read to the jury. Those pages contained further testimony by the appellant and several bench conferences. The trial court admitted into evidence those pages containing appellant’s testimony but excluded those dealing with bench conferences.

At one of these bench conferences just prior to- the appellant’s testimony the following dialogue had taken place:

“Mr. Van Bavel [Assistant State’s Attorney]: Mr. Johnson (appellant) has already made a signed implicating statement in front of Mr. Gladstone of our office so, the implicating statement has already been made. I just would like to advise your honor of that. He has already testified to pretty much what I think he’s going to testify to today.
The Court: The State has rejected it?
Mr. Van Bavel: The State has rejected it.”

On cross-examination appellant’s counsel attempted to ask the wdtness if, at his brothers’ trial and in appellant’s presence, any statement had been made by the prosecutor regarding the State’s acceptance or rejection of appellant’s prior extra-judicial admission. The State objected to the question and the objection was sustained.

In its case in chief the defense called Detective Joseph Mon of the Baltimore City Police. Mon testified that during his investigation of the Ashley murder Roslynn Massie had identified appellant’s brothers as the perpetrators from photographs shown to her and that Miss Massie and two other witnesses had done the same at a subsequent line-up in which appellant had participated. Mon testified that appellant had not been identified by anyone.

During cross-examination by the State, the following occurred:

“Q. Did Milton Johnson tell you his brother, Joseph Johnson [appellant], was at the Sportsman’s Bar on Frederick Avenue on the evening of January the 8th, 1972 ?
Mr. Yankellow [Defense Counsel]: Objection.
The Court: Overruled.
Mr. Yankellow: If Your Honor please, if that is not hearsay, I don’t know what the heck is.
The Court: I will overrule the objection.
A. Yes, he did.”

At this juncture of the trial, defense attempted to call the prosecutor as its witness. (The prosecutor, Mr. Van Bavel, had also prosecuted appellant’s brothers). Defense counsel articulated two reasons for doing so: first, to establish the fact that the prosecutor had called Roslynn Massie at the trial of appellant’s brothers and second, that at appellant’s brothers’ trial the prosecutor had rejected the prior extra-judicial statement made by the appellant. The trial court refused to allow the prosecutor to be called.

The defense then called Roslynn Massie. Miss Massie ’testified that she was in the Sportsman's Bar at the time of Ashley’s murder and that she had been called by the prosecution to testify in the trial of appellant’s brothers. She identified the appellant’s brothers (who were present in the courtroom) as Ashley’s murderers and stated that she did not see the appellant in the bar at the time of the shooting. This was virtually the same testimony she had given at the appellant’s brothers’ trial.

II HEARSAY

Appellant first contends that the trial court erred in allowing Detective Mon to testify as to a conversation he had with appellant’s brother and that that error prejudiced appellant and thus requires a reversal.

Mon was allowed to testify over timely objection of appellant’s counsel that he had been told by Milton Johnson (appellant’s brother) that the appellant had been in the Sportsman’s Bar on the night of the homicide. We have no problem in finding that the trial court erred in admitting said testimony. Mon’s testimony was clearly a communication in court of a statement made out of court and was used to establish the truth of the matter asserted therein. It thus depended for its value upon the credibility of the out-of-court declarant and as such was hearsay. Wilkins v. State, 11 Md. App. 113, 131, 273 A. 2d 236 (1971); Quiles v. State, 4 Md. App. 354, 358, 243 A. 2d 661 (1968).

Our finding that the admission of Detective Mon’s hearsay testimony was erroneous does not, of course, end our inquiry. We must determine whether the error was prejudicial or harmless.

The effect of the erroneous admission of hearsay testimony was succinctly dealt with in 2 Wharton’s Criminal Evidence § 272, at 21 (13th ed. 1972):

“Where hearsay evidence has been improperly admitted over the objection of the adverse party, the error will require a reversal if the evidence relates to a material issue or is prejudicial to such adverse party. If the hearsay evidence is neither material nor prejudicial, the error will be ignored, provided that the conviction is amply supported by other competent evidence. Thus, the admission of hearsay evidence will not constitute reversible error where it is merely cumulative.”

We are thus faced with a factual inquiry into whether the statement by Detective Mon that the appellant’s brother had said that the appellant was at the scene of the homicide on the night in question was prejudicial. From our review of the record and trial transcript we hold that it was prejudicial. There was no evidence produced at trial which placed the appellant at the scene of the crime other than the prior statements made by the appellant. The credibility and voluntariness of these statements were strenuously and repeatedly challenged by appellant’s trial counsel in a variety of ways. These statements were at no time independently corroborated other than by the hearsay now in question. Indeed an eyewitness, Miss Massie, testified that the appellant’s brothers had committed the crime and that she did not see the appellant at the bar at the time of the shooting.

The cases cited by the State, White v. State, 7 Md. App. 416, 256 A. 2d 174 (1969), Richardson & Thomas v. State, 7 Md. App. 334, 255 A. 2d 463 (1969), Grice v. State, 2 Md. App. 482, 235 A. 2d 316 (1967) and Lewis v. State, 2 Md. App. 318, 234 A. 2d 487 (1967) are inapposite. In both Richardson and White, the hearsay was not only supported by the testimony of several deputy sheriffs but was also admitted by the defendants at trial. In Lewis, the hearsay, in the form of testimony inferentially identifying the defendant as one of the perpetrators of the crime, was held to be cumulative because the defendant was positively identified by the victim, a police officer and an accomplice. In Grice, the hearsay, in the form of an out-of-court identification of the victim’s wallet and papers, was held cumulative because the wallet, with identifying papers, was in evidence and available to the jury.

We are therefore not convinced by the State’s argument that the error was harmless. As discussed above, the hearsay testimony was the only evidence which connected the appellant with the crime other than his much disputed prior statements. It also was the only independent corroboration of those statements. In short, except for the appellant’s prior statements, it was the only damning evidence against him.

Equally important is the fact that the hearsay clearly cast doubt on the credibility of appellant’s main witness, Roslynn Massie. Miss Massie testified that she did not see the appellant in the Sportsman’s Bar on the night of the homicide and that the appellant’s brothers were Gaston Ashley’s killers. There can be little doubt that the hearsay testimony which placed the appellant in the bar on the night of the homicide struck a serious blow at the credibility of Miss Massie and may have had a material bearing on the jury’s decision.

In Howard v. State, 4 Md. App. 74, 241 A. 2d 192 (1968) this Court reversed a conviction because of the admission of hearsay testimony. In Howard, a police officer was allowed to testify as to an out-of-court identification of the defendant made by the victim’s wife who was not called as a witness. The victim also identified the defendant. In reversing Howard’s conviction, we held that despite the fact that identification by one eyewitness, if believed, is sufficient to sustain a conviction, we could not say that the police officer’s testimony did not have a material bearing on the jury’s determination of guilt.

In Jones v. State, 17 Md. App. 209, 300 A. 2d 424 (1973) on facts similar to Howard v. State, supra, we reversed the conviction because “the ingredient necessary to convince the jury” of defendant’s guilt may have been the hearsay testimony.

Where trial is by a jury, all reasonable doubts as to the effect of erroneously admitted evidence upon the jury’s determination of guilt must be resolved in favor of the objecting party. Gilchrist v. State, 2 Md. App. 635, 638, 236 A. 2d 299 (1967); see also Younie v. State, 272 Md. 233, 322 A. 2d 211 (1974). We are unable to conclude that the admission of Detective Mon’s disputed testimony was harmless error. We, therefore, reverse the appellant’s conviction and remand for a new trial.

In view of our holding we need not deal with appellant’s remaining contentions; however, we will discuss two of them in order to provide guidance to the trial court on remand.

Ill PROSECUTOR’S OPINION

The appellant next contends that the trial court erred in refusing to admit into evidence part of a transcript from his brothers’ trial. The portion excluded dealt with a bench conference during which the prosecutor said that the State had “rejected” the forthcoming testimony (confession) of the appellant. The theory upon which the appellant grounds this contention is that the statement made by the State’s Attorney at the former trial was an admission which was admissible against the State in appellant’s trial.

This precise question has not previously been decided in Maryland. Our search of the case law in other jurisdictions has disclosed two closely analogous cases: People v. Kinder, 122 Cal. App. 2d 457, 265 P. 2d 24 (1954) and State v. Nichols, 236 Or. 521, 388 P. 2d 739 (1964).

In State v. Nichols, supra, the defendant was convicted of second degree murder. During his trial the defendant called the district attorney as a witness and attempted to force him to admit that during the course of oral argument concerning the sufficiency of a prior indictment against defendant for the same crime he had said to the court, “The State cannot honestly say this defendant aimed that rifle at his wife and pulled the trigger intending to kill her.” On appeal, Nichols contended that this statement was a “judicial admission” and thus admissible in subsequent proceedings, i.e., his trial. The Court rejected this contention and stated:

“The correct rule is stated in People v. Kinder, 122 Cal. App. 2d 457, 265 P.2d 23, 28 (1954): ‘ * * * The mere argument of counsel is not evidence and is not admissible as such unless made as a factual admission * * * and entered in the course of a trial.’ The opinion expressed by the attorney during the earlier proceeding while arguing a matter of law was no more relevant to prove the facts in the subsequent trial than it would have been if the attorney instead had expressed his enthusiastic personal belief in the guilt of the accused and the state were trying to place that opinion before the jury.” Id. at 746.

We perceive no factual distinction between the instant case and Kinder and Nichols. In the case at bar, the disputed statement was made at a bench conference out of the presence of the jury. The conference had been called to discuss the necessity to warn the witness (appellant) regarding the self-incrimination aspects of his forthcoming testimony. It was quite natural at that point in the proceedings for the State to assert its disbelief in the appellant’s testimony: several eyewitnesses had identified appellant’s brothers as the criminals and none could identify the appellant. In any event the statement was nothing more than the prosecutor’s opinion as to guilt or innocence.

IV PROSECUTOR AS A WITNESS

The appellant also contends that the trial court erred in refusing to allow him to call the prosecuting attorney as a defense witness. The reasons given by the trial court were that the proffered evidence was irrelevant and prejudicial to the State. By this tack, the appellant was attempting to show that the prosecutor had originally “rejected” the appellant’s testimony at the trial of his brothers.

That a prosecuting attorney is a competent witness is established in Maryland. Wilson v. State, 261 Md. 551, 276 A. 2d 214 (1971); Murphy v. State, 120 Md. 229, 235, 87 A. 811 (1913). Article 35, § 1 of the Maryland Code which deals with the competency of witnesses does not prevent a prosecutor from becoming a witness.

The question of the propriety of a trial court’s refusal to allow a defendant to call the prosecutor as a defense witness is one of first impression in Maryland. The vast weight of authority in other jurisdictions is that this decision is left to the discretion of the trial judge. Gajewski v. United States, 321 F. 2d 261 (8th Cir. 1963); Fisher v. United States, 231 F. 2d 99 (9th Cir. 1956); United States v. Maloney, 241 F. Supp. 49 (W.D. Pa. 1965); People v. Gendron, 41 Ill. 2d 351, 243 N.E.2d 208 (1968), cert. denied, 396 U. S. 889; State v. Stiltner, 61 Wash. 2d 102, 377 P. 2d 252 (1962), cert. denied, 380 U. S. 924; see also 54 A.L.R.3d 100.

The standard against which to measure the trial judge’s exercise of discretion in this regard has been articulated in several ways.

In United States v. Maloney, supra, the Court stated at page 50:

“The circumstances under which a Court will allow an attorney for a party, even a prosecuting attorney, to take the witness stand must be such that a compelling reason for such a move, contrary to the usual well-ordered rules for the conduct of a trial, are present. The Court may, without an abuse of discretion, refuse to allow the defense to call the prosecuting attorney as a witness on its behalf. Gajewski v. United States, 321 F.2d 261 (8th Cir. 1963); Hayes v. United States, 329 F.2d 209 (8th Cir. 1964) .”

In Gajewski v. United States, supra, at 268 the Court made clear the general hesitation of trial judges to permit an advocate to testify:

“Courts are especially reluctant, and rightfully so, to allow lawyers, including prosecuting attorneys, to be called as witnesses in trials in which they are advocates.”

The Court went on to discuss the effect that a defendant’s right to call witnesses has on the question of calling the prosecuting attorney:

“To be sure, an accused’s right to call relevant witnesses and to present a complete defense may not be abrogated for the sake of trial convenience or for the purpose of protecting a United States Attorney from possible embarrassment while testifying, if he possesses information vital to the defense.” Gajewski v. United States, supra at 268-269. (Emphasis added).

In State v. Stiltner, supra, the Court stated at 253-254:

“Although neither counsel is rendered incompetent as a witness because of his participation in the trial, the right of one to call the other is not exactly a ‘two-way street’ in view of defendant’s constitutional rights. This does not mean, however, that defense counsel has an uncontrolled right to call the trial prosecutor to the stand.
“We are aware of the defense ploy — albeit infrequent and not present in this case — of ‘trying the prosecutor’; it is not our intent to place such a sword in the hand of defense counsel.
“The defendant in a criminal trial has the right to prove his defense in the best manner available to him; the trial prosecutor is a competent witness; his testimony must be relevant and material to the theory of the defense; it must not be privileged, repetitious, or cumulative. See State v. Lee, 203 S.C. 536, 28 S.E.2d 402, 149 A.L.R. 1300 (1943) and annotation, ‘Competency of prosecuting attorney as a witness.’ 149 A.L.R. 1305. All this lies in the broad discretionary right of the trial judge to control the trial of the case.”

See also People v. Gendron, supra; People v. Nelson, 89 Ill.App.2d 84, 233 N.E.2d 64 (1967); People v. Boford, 117 Cal.App.2d 576, 256 P. 2d 334 (1953); Hall v. State, 202 Ga. 619, 44 S.E.2d 234 (1947); State v. Lee, 203 S. C. 536, 28 S.E.2d 402 (1943).

In applying these general standards to the situation presented in the instant case we find no abuse of the trial judge’s discretion in denying the appellant’s request to call the prosecutor. Defense counsel’s articulated reason for wanting to call the State’s Attorney was to show that he had made the statement that the State had “rejected” the appellant’s testimony at the former trial of appellant’s brothers. This testimony was not material or relevant to the guilt or innocence of appellant.

While we fully agree with the court in State v. Stiltner, supra and Gajewski v. United States, supra, that a defendant has a right to call relevant witnesses and to present a complete defense, the appellant in this case has failed to show the relevancy and materiality of the excluded testimony.

V SUFFICIENCY OF THE EVIDENCE

The appellant’s other contentions deal with the sufficiency of the evidence at his trial; as the evidence on retrial may be different we need not deal with these questions.

Judgment reversed.

Case remanded for a new trial.


text:
    LORRAINE KLAVANS v. LEE KLAVANS
    [No. 66,
    September Term, 1974.]

      Decided October 18, 1974.

    The cause was argued before Thompson, Gilbert and Menchine, JJ.

      Karl H. Goodman and Lee Gordon, with whom were Gordon & Goodman, P. A. on the brief, for appellant.

      Lawrence S. Greenwald, with whom were Donald N. Rothman and Gordon, Feinblatt, Rothman, Hoffberger & Hollander on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

In 1966, Lee Klavans and Lorraine Klavans, his wife, were residents of Baltimore City. In order that their children might attend what they considered to be better schools, they decide to acquire a home in Baltimore County. After looking at several existing houses they decided to purchase a lot and to construct a house thereon. The deed for one lot was acquired on March 6, 1967 and for an adjoining lot on September 22, 1967, both being titled to the parties as tenants by the entireties. The first lot cost $10,500 which was paid out of their savings. The second lot cost $10,000 and was purchased with funds borrowed from Mercury Cab Company, Inc. This note w'as signed by both Mr. & Mrs. Klavans. Eventually the parties entered into a contract in the amount of $69,000 for the construction of a home on the two lots. Extras brought the total cost of the dwelling to $89,800. Of that amount, $50,000 was obtained by a mortgage executed by both parties; $10,000 was borrowed from Mr. Klavans’ stepfather, secured by a note dated May 9, 1969 executed by both parties. As to the balance, $14,800 was derived from savings from Mr. Klavans’ earnings and $15,000 from the proceeds of a loan from The Yellow Cab Company. The loan was evidenced by a note executed by Mr. Klavans alone and dated July 1, 1968.

The parties were married in 1950 and continued living together until sixteen months after they moved into their home in 1969. It appears that Mrs. Klavans did not work at any time after her marriage and had no funds of her own. Mr. Klavans, an attorney, was involved in the taxicab business and the parties lived exclusively on his earnings. They were divorced in January of 1972. While the divorce proceedings were pending their house was sold and approximately $19,000 was placed in escrow to await the outcome of the current litigation.

In this litigation, plaintiff, Mr. Klavans, seeks to recover one-half of $29,800 which is the amount he contributed over and above the funds jointly obtained by him and his wife to finance the construction of their home. In the alternative, he seeks to recover one-half of the principal and interest of the note to The Yellow Cab Company said to total $19,537 as of August 31, 1973.

The trial judge, sitting in the Circuit Court for Baltimore County, found that the $14,800 contributed by the plaintiff from his own funds constituted a gift to the wife, to the extent of her interest in the realty, but that the proceeds of the $15,000 loan from The Yellow Cab Company did not constitute a gift. The trial judge apparently based his decision primarily upon a statement made by Mrs. Klavans that, if she had been requested to, she “guessed” she would have signed the note. The trial judge held that to allow Mrs. Klavans the benefit of one-half of the proceeds of The Yellow Cab Company note as a gift would constitute unjust enrichment and held that as to the proceeds of that note there was a constructive trust in favor of the husband. We are unable to see any distinction between the funds advanced by Mr. Klavans from his earnings and those which he borrowed on his own account by a note from The Yellow Cab Company. WTe, therefore, hold that the proceeds from the loan were a gift and thus the funds held in escrow belong one-half to each party.

Maryland has long held that when one spouse advances funds to purchase property which is placed in the names of both parties as tenants by the entireties there is a presumption that the spouse providing the funds intended to make a gift to the extent of his or her spouse’s interest in the property. McCally v. McCally, 250 Md. 541, 243 A. 2d 538 (1968); Anderson v. Anderson, 215 Md. 483, 138 A. 2d 880 (1958); Gunter v. Gunter, 187 Md. 228, 49 A. 2d 454 (1946).

The Court in Reed v. Reed, 109 Md. 690, 692, 72 A. 414 (1909), stated the rule more fully, in the context of property titled in a single name, as follows:

“[Wjhere a wife during coverture voluntarily and without any fraud or undue influence on the part of the husband, conveys her property to him, the effect of a decree for divorce is not to vest in her an equitable title to such property. It has been repeatedly held by this Court that if a wife gives to her husband property belonging to her separate estate, or permits him to apply it to his own use, or he does so with her knowledge and consent, in the absence of proof that it was given to him to be held in trust for her use, or of a promise by the husband at the time to repay it, it wall be presumed that it w'as intended as an absolute gift to him, and she has no claim therefor against him or his estate.”

The husband recognizes the rule as we have stated it but argues that it is not applicable to the facts of the instant case. To support his argument he seizes upon the language of the Court of Appeals in the recent case of Lingo v. Lingo, 267 Md. 707, 711, 299 A. 2d 11 (1973), wherein the Court said:

“Those authorities are distinguishable, and are therefore inapposite, because none of them involved payment of an encumbrance by one of the tenants. The rule enunciated in Gunter, [supra], which we quoted in McCally, [supra], is inapplicable for the additional reason that we are not concerned here with a contribution made ‘prior to the joint acquisition,’ but, on the contrary, with one made after acquisition to avoid its loss by foreclosure.”

He argues that in providing money for the contractor from The Yellow Cab Company loan he was preventing the contractor from obtaining a mechanic’s lien and that since the lots had been previously acquired, his loan wms made after acquisition and to avoid loss by foreclosure of the presumed liens. Whatever validity his argument might have is undercut by a consideration of the facts of Lingo v. Lingo, supra, and the language used by the Court in other parts of that opinion. The facts there show that Mr. & Mrs. Lingo were engaged in the business of building houses for sale and that prior to their separation a lot had been acquired in their names as tenants by the entireties. After the parties separated and while the house was being readied for construction, Mrs. Lingo refused to execute a mortgage to cover a construction loan whereupon Mr. Lingo forged her signature thereon. After she discovered his fraud, she notified the bank who gave Mr. Lingo three hours in which to pay off the loan of $36,334.95. He did so by selling some individually owned stock. In other parts of the opinion the Court said:

“The question presented by this appeal is somewhat narrower in scope than that posited by appellant. What is involved is not simply whether one tenant by the entireties may recover proportionate reimbursement from the other for a loan curtailment made by the former. To this must be added the additional facts that, as found by the auditor, the parties were actually joint venturers in the building operation leading to the improvement of the subject property, and that the parties were separated when the advancement was made by appellee.”Id. at 709-10. (Emphasis added).
“We think that the four last-mentioned authorities, taken together, support our conclusion that the gift presumption does not apply to the particular circumstances of this case.” Id. at 713. (Emphasis added).

Our position is supported by an analysis of the cases relied on by the Court to support this statement. Only two of the cases involved a husband and wife: Colburn v. Colburn, 265 Md. 468, 290 A. 2d 480 (1972) and Schilbach v. Schilbach, 171 Md. 405, 189 A. 432 (1937). In those cases the Court was concerned with the making of improvements, the payment of taxes or the liquidation of loans after the parties had been divorced or separated. The Court was not dealing with a situation where, as in the instant case, the parties were living together as man and wife at the time the payments were made. The other cases cited in Lingo concerned persons who were not husband and wife.

Mrs. Klavans relies on Meyers v. East End Loan and Savings Association, 139 Md. 607, 116 A. 453 (1922) wherein the Court specifically held that a payment made prior to a divorce on account of property owned as tenants by the entireties was presumed to be a gift by one spouse to another. Mr. Klavans attempts to distinguish the instant case from Meyers on the basis that in Meyers the payments were made under a contract to purchase an estate by the entireties. We do not think the distinction is sound. In Cunningham v. Cunningham, 158 Md. 372, 378, 148 A. 444 (1930), the Court of Appeals cited Meyers v. East End Loan and Sa vings Association, supra, to support this statement:

“The payments [on mortgages on property previously acquired as tenants by the entireties and occupied as a home] made by the husband are to be regarded as gifts to his wife to the extent to which they relieved her of an equality of contribution (Meyers v. East End Loan & Savings Assn., 139 Md. 607; * * *."

The rule we are applying seems to be followed throughout the United States. Although there are many cases applying the rule where funds of one spouse are used to purchase property as tenants by the entireties, there are relatively few which involve the payment of liens on property already titled in both names. All cases we have found hold, or state in dictum, that a payment by one spouse on liens on property owned as tenants by the entireties is presumed to be a gift to the other spouse, to the extent of his interest. We have found no case to the contrary.

Inasmuch as there was insufficient evidence to rebut the gift presumption, we hold the trial judge was clearly erroneous in holding the proceeds of the note from The Yellow Cab Company did not become a gift to the wife, to the extent of her interest, when the proceeds were paid to the contractor who had erected a house on lots owned by the parties as tenants by the entireties, the payments being made while the parties were living together.

Judgment reversed.

Case remanded for entry of a judgment for appellant.

Appellee to pay the costs.

      . College Point Savings Bank v. Tomlinson, 42 Misc. 2d 1061, 249 N.Y.S.2d 938 (Sup. Ct. 1964); Dorf v. Tuscarora Pipe Line Company, 48 N.J.Super. 26, 136 A. 2d 778 (1957); Martos v. Martos, 134 N.Y.S.2d 832 (1954); Everly v. Schoemer, 139 W. Va. 392, 80 S.E.2d 334 (Sup. Ct. 1954); Commerce Union Bank v. Weis, 27 Tenn. App. 433, 181 S.W.2d 764 (1944); Hogevoll v. Hogevoll, 59 Cal.App.2d 188, 138 P. 2d 693 (1943); Radabaugh v. Radabaugh, 109 Ind. App. 350, 35 N.E.2d 114 (1941) and Zanzonico v. Zanzonico, 124 N.J.Eq. 477, 2 A. 2d 597 (1938).


author: Lowe, J.,

text:
    WILLIAM WHITE v. STATE OF MARYLAND
    [No. 73,
    September Term, 1974.]

      Decided October 18, 1974

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

      Weldon Leroy Maddox, Assigned Public Defender, for appellant.

      Arrie W. Davis, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Milton B. Allen, State’s Attorney for Baltimore City, and Joseph Wase, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

After presiding over the convictions of William H. White following a jury trial in the Criminal Court of Baltimore, Judge Paul A. Dorf sentenced appellant White to a total of one hundred and fifty-five years to be served consecutive to a life sentence. The crimes for which Mr. White was convicted were first degree murder, assault with intent to murder, four counts of robbery with a deadly weapon and four handgun violations. The convictions arose out of a single incident when appellant and three other persons robbed the Chevrolet Inn and its patrons. One patron was killed and another wounded.

The appellant was first tried from May 2, 1973 to May 10, 1973 jointly with a co-defendant who was convicted by a jury. The jury could arrive at no decision as to appellant and the case against him was declared a mistrial. This appeal reviews the retrial commenced on Nov. 8, 1973. Several of the fourteen issues raised by appellant result from the interrelation of the two trials.

Unresolved Motion

Appellant contends that prejudicial error was committed by the failure of the court below to rule on the speedy trial issue he raised prior to retrial. Among a multitude of issues contained in a single Motion to Dismiss the Indictments, appellant asserted (in subparagraph c of paragraph 10) that his “constitutional and fundamental rights” had been violated by his having “been denied a speedy trial.” The overall Motion to Dismiss was heard by Judge Anselm Sodaro. During the hearing Judge Sodaro asked,

“Mr. Maddox, may I ask whether there has been filed in these proceedings a motion for a speedy trial, or is that motion for a speedy trial included in this motion to dismiss the indictments? ”

Neither appellant nor his counsel was able to recall whether such motion had been filed since the first trial or if so in' what form.

Judge Sodaro then explained:

“THE COURT: The reason I am inquiring is if there has been a motion for speedy trial filed there will have to be an ajudication [sic] on that motion, the determination of the motion can be decided and then the case can go on to trial, or it can be held sub curia until after the determination of thé trial, all of which is subject to appeal in the event of a guilty verdict. It seems to me inasmuch as I am not going to hear this case, but Judge Watts ' will on November the 7th, that the motion for a speedy trial ought to be argued and determined by the judge presiding at the trial of the case, and if there is to be a motion for a speedy trial, I think it ought to be filed on a separate document and not be included in the motion to. dismiss these indictments, because various grounds have been assigned for the dismissal of these indictments, one of which is-this defendant has not been afforded a speedy trial, and it seems to me that I should not make -any ajudication [sic] of that issue in these proceedings but I would have to leave it to Judge Watts at the time of the trial of the case.
“I would also suggest it would be a better practice and make a more orderly procedure, if the defendant still insists on claiminghe [sic] has been denied his right to a speedy trial, that he ought to file that motion, that speedy trial motion in a separate document so there can be an ajudication [sic] of that motion. If this defendant is then acquitted all well and good; if this defendant is found guilty I think the record ought to be made complete that some one judge, either I or Judge Watts, had made a determination of the motion for speedy trial. Do we understand each other now?
“MR. MADDOX: Yes.”

When the case was called for trial the judge presiding was not Judge Watts as anticipated but rather the Honorable Paul A. Dorf. Judge Dorf promptly asked the parties:

“What are the motions before me if any at this time? ”

Although appellant raised several preliminary questions to be decided by Judge Dorf, at no time did appellant mention the undecided subparagraph 10 c of the Motion to Dismiss, disposed of in all other respects by Judge Sodaro. Time and again during the disposition of preliminary matters prior to selecting a jury Judge Dorf would inquire “What motions are you pressing now” or some similar invitation to bring to his attention any matter pending that should be disposed of prior to trial. Finally, immediately before concluding the preliminary hearing Judge Dorf once more asked:

“Gentlemen are there any other foreseeable problems we can solve at this time before we go to trial? ”

The appellant brought out “The only other thing . . .” which he asked to be decided and which had no relation to the speedy trial complaint. Proceedings were then concluded and the case continued until the following day when witnesses could be obtained to dispose of a motion to suppress an in-court identification prior to selecting a jury.

Although appellant cites no authority for his contention that failure to rule upon a pending motion may be prejudicial error we have no question that such right is an important element of Maryland law. Brice v. State, 254 Md. 655. We note, however, that this right, as most other rights, carries with it a commensurate responsibility. The motion to be decided must be brought to the attention of the trial court. Appellant may not take advantage of an obscurely situate, undecided motion and stand mute in the face of repeated requests by the judge for all pending motions to be decided. This becomes inexcusable in light of the former hearing judge having specifically admonished appellant to place the question squarely before the judge who would try the case. In both Alston v. State, 11 Md. App. 624 and Saunders v. State, 8 Md. App. 143, while acknowledging the trial court’s responsibility to rule on all pending motions, we have added, the qualification “... if they are brought to his attention prior to the conclusion of the trial.” Saunders v. State, supra, at 146; see also Frazier v. State, 3 Md. App. 470. If the question is not of such importance to appellant that he remembers to request an answer, the court cannot be charged with screening previously decided motions to discern an unanswered sentence obscured by a plethora of unrelated issues. Nor can we permit such distended motions to be set as a trap for an unwary judge. Appellant obviously waived his right to a ruling on the motion by repeatedly failing to present the question to Judge Dorf.

Remarks Indicative of Prejudice

When the new trial commenced, appellant subpoenaed his brother who was in custody, and received permission for him to sit in the courtroom during the trial. Appellant complains of the trial judge’s inability to impartially preside which he infers from his remarks during an episode involving appellant and his brother. To place the remarks in context we review the factual setting revealed by the record.

At the previous trial witnesses identifying appellant testified that he sported a mustache and a bush hair style. At the time of the second trial he had altered his appearance by removing the mustache and closely cropping his hair.

During the hearing on the motion to suppress in-court identification, prior to the second trial, appellant wore a distinctive business suit with a floral design. The State’s witness was asked to identify the perpetrator of the crime. She identified appellant who was wearing the suit. Appellant’s brother had grown a mustache and “bush” hair style while in custody prior to the second trial. He appeared in court dressed in prison denims and flanked by guards. According to the trial judge the brother’s facial and physical appearance were quite similar to the accused. The judge refused to allow the brother (who, though subpoenaed, never testified) to be seated at the trial table next to the now clean shaven, closely cropped defendant (dressed as indicated in the eye-catching suit). No objection was raised to that refusal.

During the trial, appellant changed his garb and his prisoner-brother donned the appellant’s floral suit.

The State’s identification witness had, of course, been sequestered since the suppression hearing to await her turn to testify and identify appellant in the presence of the jury. Thus, when she returned, she would have seen the look-alike brother seated in the courtroom in appellant’s floral suit. This brotherly exchange of appearance and dress was obviously intended to mislead the identifying witnesses, and the trial judge properly refused to permit the solemn process of identification to become a charade of look-alikes.

Appellant does not protest the prohibition of the proposed practice either. His complaint is that the remarks of the trial judge, although not in the presence of the jury, were so prejudicial as to indicate that he “could not assure the Appellant a fair and impartial trial.” We quote the record where it begins after an overnight recess:

“THE COURT: I really don’t appreciate the fact that the defendant has changed suits in the middle of the trial. Now the person who is being put in the audience, his brother, is wearing the suit he wore at the trial yesterday.
“MR. WASE: The State would enter an objection to it, Your Honor.
“THE COURT: The State does not have to object. I object strenuously and I don’t know what is happening here. I’m not talking to Mr. Maddox. It’s probably the first time you have seen it.
“MR. MADDOX: The first time I have seen the change I’ll say.
“THE COURT: It appears to the Court that there are things that are taking place in this case which are not exactly fair. I don’t really appreciate it. I’m advising all parties, Mr. White, take off that jacket, just sit without a jacket today. Take the jacket back. I don’t care what you do with it. You’re not going to have the defendant wear the jacket one day and the brother wear the same jacket the next day. With that type of jacket, white jacket with a floral arrangement, the minute the jacket walks in, I’m not a connoisseur of men’s clothing, but it stands out like a sore thumb. I was going to tell him you’re sitting in the wrong place.
“MR. WASE: If your Honor please of course the man still has the pants on.
“THE COURT: Well I can’t take his pants off.”

In light of the circumstances we consider the judge’s remarks commendably restrained and anything but indicative of prejudice, unfairness or partiality. The granting or denial of a mistrial being discretionary, Johnson v. State, 18 Md. App. 571, 574-5, there is no evidence whatsoever of an abuse of discretion. To the contrary, we find appellant’s attempted deception repugnant to the truth-finding process and deserving of the reproval it received. In addition, we reiterate that the reproval occurred when the jury was not present.

Defendant’s Prior Testimony

Prior to concluding the State’s case the assistant state’s attorney offered a transcript of the appellant’s testimony given at the first trial. Appellant’s objection asserted that admission of such testimony would violate his right not to incriminate himself guaranteed by the fifth amendment to the Constitution of the United States. The court overruled the objection and permitted the testimony to be introduced.

The testimony was essentially exculpatory. Appellant denied having been near the scene on the night in question or of having been acquainted with any of the known participants. The latter assertion had especial significance in the original trial since Abraham Goode, a co-defendant, was convicted although the jury was unable to agree as to White. Appellant specifically disavowed knowing Goode prior to their respective arrests. Nothing more of substance was included in his testimony from the first trial.

Had the issue concluded there, the question would give us but little concern. In Harrison v. United States, 392 U. S. 219, 222, the Supreme Court settled the question of a defendant’s alleged compulsory self-incrimination through introduction of his testimony at a former trial:

“In this case we need not and do not question the general evidentiary rule that a defendant’s testimony at a former trial is admissible in evidence against him in later proceedings. A defendant who chooses to testify waives his privilege against compulsory self-incrimination with respect to the testimony he gives, and that waiver is no less effective or complete because the defendant may have been motivated to take the witness stand in the first place only by reason of the strength of the lawful evidence adduced against him.”

Impeachment of Defendant’s Testimony From Prior Trial

However, the State then followed the introduction of appellant’s testimony from the prior trial with witnesses who testified to facts contradicting portions of the exculpatory testimony. These witnesses included Mrs. Phyllis Wiggins, a school teacher and cum laude college graduate, who lived with an associate of White. She placed White in the company of the co-defendant whom he had denied knowing.

John Bernard Morris was then called by the State to testify behind a shield of sweeping immunity from prosecution for an unrelated crime, as well as “if during the course of that testimony any of the statements he makes incriminates him in any other offense, he will not be prosecuted by the State.”

After testifying that his occupation “until recently . . . was a stick up artist” and that he generally “dealt in criminal activity,” Morris’ direct testimony did little more than contradict appellant’s testimony from the previous trial, particularly regarding persons he denied knowing. Additionally, Morris described appellant’s physical appearance during the time period when the crime was perpetrated.

Appellant argues that “The State cannot impeach its own witnesses or evidence. The State offered the testimony of the Appellant and it is bound by its exculpatory nature.” Such does not appear to be the law of Maryland.

In Henze v. State, 154 Md. 332 the record reveals that appellant was tried three times before a verdict could be reached. His entire testimony from one of the previous aborted trials for the same offense was introduced by the State during its case-in-chief. The State then contradicted Henze on portions of his testimony by producing two other witnesses. In a single paragraph the Court of Appeals through Judge Pattison disposed of exceptions to the contradictory testimony:

“The twenty-first, twenty-second, twenty-third, and twenty-fourth exceptions were to the rulings of the court in allowing the State witnesses Johnson and Dee to contradict Henze in certain statements made by him in his evidence. The State did not make the defendant its own witness by repeating to the jury his own story, as told upon a former trial, and the fact that some portions of the statement so read were thereafter contradicted by the State’s witnesses cannot be regarded as a violation of the rule which forbids a party to impeach its own witnesses. Mackmaster v. State, supra. If the evidence was admissible, as we have held it to be, it would seem right and proper that the State should have been allowed to contradict any exculpatory statements made by the defendant in his evidence; consequently we do not see any error committed by the court in its rulings upon these exceptions.”

Notwithstanding the brevity of that isolated holding, it does not seem unreasonable to allow the State to contradict a properly admitted statement by defendant, whether made judicially or extrajudicially. The State can hardly be said to “vouch” for its witness when the witness is the defendant. On the other hand, we do not find the issue as “patently frivolous” as the State suggests. However, since the objections here were restricted to the issues of self-incrimination and the contradiction of defendant’s testimony once introduced, neither of which was of substance in the light of Harrison and Henze, we expressly decline to rule on the relevance of the initial proffer. The appellant did not raise that issue and it is not before us.

Foundation Necessary to Contradict

Appellant then called Titus Stokes, one of a number of persons who had been in jail with the immunized witness, Morris, and who appellant contended would impeach his testimony. Appellant asked Stokes if he had ever had any discussion with Morris. He replied, “I didn’t have a discussion but I overheard a conversation.” Objections were then sustained to four successive questions, all of which were directed toward eliciting evidence of prior statements made by Morris which allegedly were inconsistent with his testimony. The court sustained the objections primarily on the ground of hearsay. Thwarted by this obstacle appellant declined the court’s invitation to rephrase the questions. He further refused to call the additional witnesses he had proposed for the same purpose.

The trial judge properly rejected such impeachment testimony, although perhaps assigning the wrong reason. The record clearly indicates that appellant made no attempt to lay a foundation for such impeachment by first asking the witness, Morris, whether he had indeed made the statement to which Stokes alluded at the time, place and to the person alleged. Only upon a denial by the witness that he made the statement or his assertion that he did not remember making it, may appellant proceed to set forth contradictory testimony. Sanders v. State, 1 Md. App. 630, 640-641.

In addition, the prejudice now discerned from the preclusion of the testimony was, at the time, conceded by appellant to be minimal. His counsel gratuitously offered the following statement for the record:

“I want to be perfectly honest with the Court to indicate what happened in this case. I did go down to the lockup. When I arrived down there Mr. White, he.called all those witnesses over. I can say this as a matter of fact. I took the names of six persons, Edward Thomas, Gregory Leonard, Titus Stokes, John Stanley Lomax, Roosevelt Jenkins and Calvert Williams. I talked with them. But I want to be perfectly honest with my client and to the Court from my conversation I fail to see how they will offer anything in the way of any defense for Mr. White. I say this in open court after having talked to them. I know Mr. White may not like what I am saying but I have been honest with theCourt. [sic] I doubt very much whether anything they could say concerning John Morris is even admissible in court.” (Emphasis added).

We accept counsel’s opinion that the witnesses would not have offered “anything in the way of any defense for Mr. White.” More significantly, without the proper foundation having been laid we concur that their testimony concerning John Morris was not admissible.

Instructions as to Other Offenses

As the trial drew to a close, the testimony of the immunized witness, John Bernard Morris, again caused appellant concern, this time in regard to the court’s instructions to the jury.

On direct examination Morris did nothing more than contradict the testimony appellant had given at his prior trial. With the exception of' describing himself as a “stickup artist” who “dealt in criminal activity” his direct evidence related only to appellant’s associations and appearance.

The testimony elicited by appellant on cross-examination, however, was devastating. Responding to questions of appellant’s counsel, Morris stated that he had known appellant for a year and a half, that he knew appellant had a “stick up mob,” and that together with appellant they dealt in the sale of narcotics. He also described an association “with Mr. White ... on an assassin mission. We took a victim from an apartment to kill him.”

As appellant was eliciting this testimony the court, obviously concerned about its possible impact on the jury interspersed its own objection. The appellant insisted upon his right to “impeach” by so cross-examining. Upon continuing he found a most willing witness, who recounted without shame as many unrecorded offenses as he was able to include under the unbelievably broad blanket of immunity provided him by the State.

Obviously still concerned that the jury may give undue and misplaced emphasis to this testimony, the court instructed:

“that the fact the defendant may or may not have committed other crimes cannot be the basis to convict him of the present crime. This testimony may have bearing on motive or intent, but you are not to convict in the present case for things he may have done in other circumstances or other cases.”

Appellant’s complaint that the court injected parenthetically the phrase that such evidence “may have bearing on motive or intent” indicates no error or prejudice to us. It is an accurate if condensed tenet of law. Avery v. State, 15 Md. App. 520, 532-533. It is ironic that appellant elicited the very testimony that he now insists be disregarded and the use of which the court correctly restricted sua sponte.

Remaining Issues Without Merit

Appellant raises a host of additional issues which merit less consideration, and are thus treated summarily. Their resolution requires only brief allusion to firmly established legal principles.

Three objections are made to the trial court’s instructions or refusal to instruct. Appellant complains:

1. ) that the judge declined to accept his proposed instructions on the jury’s role as judge of law and fact, and the necessary absence of consent in a robbery. However, these areas were adequately covered by the language of the instructions given. When the meaning is implicit and clear, definitive terms are discretionary. Johnson v. State, 9 Md. App. 166;

2. ) that during his explanation of the felony murder rule, the judge stated that if a murder “occurred during the occurrence of a robbery it was automatically first degree murder.” Appellant contends this made it unnecessary for the jury to find “malice.” We have said that under the felony-murder rule “the malice necessary to constitute murder is implied from the fact that the accused was committing or attempting to commit a felony.” Lindsay v. State, 8 Md. App. 100, 105, n. 7, quoting from Clark and Marshall, Law of Crimes, 6th Ed., § 10.07, p. 588. To place the phrase objected to in context would require the repetition of an eight page instruction on the law of murder given by the trial judge. We have reviewed the instruction and find no error;

3.) that the court refused to instruct the jury that the handgun violation in Md. Code, Art. 27, § 36B applied only to handguns which are operable. We find no such prerequisite in the statute. The declaration of policy of that section is to discourage “the carrying of handguns on the streets and public ways by persons inclined to use them in criminal activity.” To require proof that a handgun used in the commission of a crime was operable, would make it impossible to convict unless the weapon itself were discovered and admitted into evidence. Even then only its ability to be discharged at the time the crime was committed would be conclusive.

We also note regarding jury instructions that the “court did instruct that it was necessary to find that Appellant did personally use a handgun.” This court has recently held to the contrary. Broadway v. State, 23 Md. 68. Consequently, in addition to the reasons stated, when the jury found that appellant participated in the robbery during which a death ensued as a result of the handgun used, even by an associate, he was guilty of the commission of that felony by the “use” of a handgun. Broadway, supra. Although the instruction was incorrect it could in no way be detrimental to appellant.

Appellant argues that during a hearing on his Motion to Suppress In-Court Identification, the court recalled two of the witnesses who had been asked to identify him at his previous trial. In appellant’s view, the trial court should have been limited to the transcript of the previous proceeding in arriving at its decision on the motion. We disagree. The judge, in his ultimate quest for truth in the identifications, properly supplemented the transcript testimony by himself examining these witnesses, cf. Sim-Kee Corporation v. Hewitt, 13 Md. App. 296. If appellant were concerned that the witnesses’ recollection of identity may thereby be refreshed, he could readily have withdrawn his motion.

Appellant protests that the officer should not have been permitted to testify, as part of the res gestae, that upon his arrival at the scene two witnesses stated that they had been robbed. The factual posture of the case is antithetical to appellant’s contentions. The officer arrived two minutes after the robbery. The statements were immediately made in a situation frightening enough to produce a spontaneous or instinctive reaction. The circumstances showed a lack of forethought or deliberate design on the part of the declarants. Reckard v. State, 2 Md. App. 312, 316. Where a statement is made two minutes after a robbery where one man was killed, and one of the declarants wounded, a more appropriate setting for the finding of excited utterances is difficult to imagine.

Appellant next contends that he should have been granted a mistrial because of a proffer made by the state’s attorney regarding transcript testimony of a witness from the prior trial which appellant planned to introduce. We find that the state’s proffer that the testimony was previously soundly impeached and would again be impeached if introduced, was in substantial accord with the evidence. The proffer was thus evidently made in good faith and the trial court’s denial of the motion for a mistrial was no abuse. Johnson v. State, 18 Md. App. 571.

The complaint of former jeopardy arising from the previous mistrial declared as the result of jury indecision following deliberations from 3:30 p.m. until well after midnight, where the foreman did not believe his fellow jurors could agree, lacks substance in the light of our holding in Baker v. State, 15 Md. App. 73, 89. Nothing indicates to us an abuse of discretion in the mistrial declaration.

The last three arguments raised may be treated even more summarily than the preceding ones. Having failed to make the closing argument or the in-chambers discussions a part of the record, appellant has not preserved for review his objections to alleged court imposed restraints on the scope of his jury argument. Md. Rule 1085. The question of merger of the handgun violation with the armed robbery count has been treated by this court. Bremer v. State, 18 Md. App. 291, 344-345. And finally, the evidence, which included a victim’s positive identification of appellant as a participant in the robberies during which a man was murdered by the use of a handgun, was ample to sustain his conviction. Williams v. State, 5 Md. App. 450.

Judgments affirmed.

      . The admission of testimony was declined, however, because the record revealed defendant had boon induced by advice of counsel to take the stand in the first trial to offset the contents of three illegally obtained confessions wrongfully admitted. Harrison held that the testimony could not be used at the second trial only because it resulted from the “fruit of the poisonous tree” viz., the illegal conference.

      . Relevancy and leading the witness were other reasons given for some questions.


author: Gilbert, J.,

text:
    WASHINGTON HOMES, INC. v. LARRY E. BAGGETT et al.
    [No. 78,
    September Term, 1974.]

      Decided October 18, 1974.

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

      Paul M. Nussbaum and Richard E. Ekstrand, with whom were Reichelt, Nussbaum & Brown on the brief, for appellant.

      T. Myron Loyd and Richard J. Clark for appellees.
   Gilbert, J.,

delivered the opinion of the Court.

Fifty-five individuals filed suit in the Circuit Court for Charles County against Washington Homes, Inc. (Washington) for specific performance of divers building contracts and for monetary damages for breach of the contracts. The claims of each of the fifty-five individuals alleged, in essence, that each of the plaintiffs had entered into a written contract for the construction of a house at a specified price, and each had obtained a mortgage commitment from a financial institution designated by Washington. The plaintiffs further averred that they subsequently received a letter from Washington which read in pertinent part:

“ . . . [T]he lending institution named by us as being the lender designated to make you a first trust loan has informed us that due to present financial mortgage market conditions they will not consummate or make a loan to you.
Accordingly, pursuant to paragraph 15 of the Contract of Sale between you and the underwriters, Washington Homes, Inc. exercises its option to cancel and terminate said agreement.”

Each letter was accompanied by a check payable to the order of the respective plaintiff in an amount equal to the deposit previously made by the plaintiff. Four of the plaintiff-appellees, Paul R. and Mary June Ehler and Thomas L. and Patricia A. Krouse, “cashed” their refund checks. None of the other plaintiffs, however, did so. The plaintiffs, after obtaining mortgage commitment from other lending institutions, demanded that Washington perform in accordance with the contract of sale. Washington declined to do so and this litigation ensued.

The basis of the claim for breach is that, as a result of what the plaintiffs pereeive to be Washington’s actions, the plaintiffs were required to incur “damages including but not limited to damages for the loss of the benefit of the contract, and the necessity of financing their homes at a higher interest rate.” The Chancellor, as a result of a pretrial conference, ordered that the trial be bifurcated with the question of specific performance to be decided first, and the damage suits to be reserved for resolution at a later time. As of the date that this matter was heard on oral argument, the damage suits had not been litigated.

Following a trial, Judge James C. Mitchell decreed specific performance of the contracts in each of the cases. Washington entered a timely appeal to this Court, pursuant to the provisions of Courts and Judicial Proceedings Article § 12-303 (c) (5). That section provides:

“A party may appeal from any of the following interlocutory orders entered by a circuit court in a civil case:
(c) an order
* * *
(5) For the sale, conveyance, or delivery of real or personal property or the payment of money, or the refusal to rescind or discharge such an order, unless the delivery or payment is directed to be made to a receiver appointed by the court.”

Of course, the right of appeal of the interlocutory orders set forth in Courts Art. § 12-303 is not affected by Md. Rule 605 a. See Funger v. Mayor of Somerset, 244 Md. 141, 223 A. 2d 168 (1966).

Washington posted a supersedeas bond, Md. Rule 1017, as to the Ehlers and the Krouses, and this stayed the execution of those specific performance decrees. No such bond, however, was posted as to the other plaintiff-appellees. Six of the successful plaintiffs, after the entry of a decree, abandoned their rights, and those cases have been voluntarily dismissed. We are left, therefore, with forty-nine appellees.

The appellees have filed a motion to dismiss Washington’s appeal pursuant to Md. Rule 1035 b (7) on the ground that the specific performance litigation, with the exception of the cases of Ehler and Krouse, is moot. It is alleged in the motion, and candidly acknowledged on oral argument by Washington, that Washington had, in fact, complied with the decrees of the Circuit Court for Charles County in all cases except those of Ehler and Krouse. Washington stated in its argument that it complied with the specific performance decrees because the cost of posting supersedeas bonds, in all of the cases, was prohibitive. Notwithstanding full compliance with the decrees, Washington asserts that the matters are not moot, and even though the houses have been built, settlements had and the properties conveyed by Washington to forty-five of the appellees, we should, nevertheless, reverse the decrees and order the properties restored to Washington. It appears to us, as a result of what we were told on oral argument, that Washington seeks to have us decide, at least tangentially, the issue of damages still pending before the trial court. It is equally apparent that Washington seeks to have the best of both worlds.

Washington elected to comply with the court decrees rather than post supersedeas bonds. By their own actions they have mooted the issues. There is nothing remaining for this Court to decide as to forty-five of the appellees. This Court does not sit in order to decide abstract or moot questions of law. Md. Rule 1035 b (7). See also Banner v. Home Sales Co., 201 Md. 425, 94 A. 2d 264 (1953): Montgomery Co. v. Metropolitan Dis., 200 Md. 525, 92 A. 2d 350 (1952); Davis v. State, 183 Md. 385, 37 A. 2d 880 (1944).

Furthermore, we do not decide questions which have not been raised and decided by the trial court. Md. Rule 1085. Therefore, we shall refrain from commenting directly or indirectly upon the merits, if any, of the pending damage claims.

The motion of appellees to dismiss Washington’s appeal, as to all appellees except the Ehlers and the Krouses, is granted.

We turn now to a discussion of the Ehler and Krouse cases. Washington contends that when they returned the deposits to Ehler and Krouse, and those persons accepted and negotiated the checks, Washington’s obligation under the Ehler and Krouse contracts ceased.

The bill of complaint filed on behalf of the Ehlers states that after receiving notification on September 21, 1973 from Washington of the cancellation of the contract, the Ehlers obtained “prior to October 4, 1973 a loan commitment, and forwarded the commitment, as well as the deposit check . . . to ... Washington. .. .” The record, however, does not support their allegations. With respect to the testimony of Mr. Ehler, the record states:

“Q. Did there come a time that Washington Homes wrote you a letter and you say returned your check?
A. Yes, sir.
Q. Is that your check?
A. That is the check. .
Q. And that is the check returning deposit to you?
A. That is the check.
Q. And you cashed it?
A. Yes, I did. It is in my savings account.
Q. So at the moment you have no deposit up at all with Washington Homes or anyone else for that matter?
A. No. According to them, I never did anyhow.
Q. Pardon?
A. According to Mr. Harnett, it probably never had one anyhow. The way it looks.
Q. But the contract in which you protected yourself, did call for a $500.00 deposit for you ' to put up with Washington Homes, correct?
A. That is right.
Q. And Washington Homes refunded that $500.00 deposit to you, did they not?
A. They done it. I don’t know if it was done legally, rightfully.
Q. But you took it?
A. Yes, sir.”

Mr. Krouse testified as follows:

“Q. You received from Washington Homes the deposit check of a thousand dollars?
A. Yes, sir.
Q. That was remitted to you with the letter from Washington Homes notifying you of the cancellation?
A. Yes, sir, it was. Yes, sir.
Q. And you kept that deposit check?
A. Yes, sir, I did.
Q. And you cashed it?
A. I put it in my savings account, yes, sir.
Q. So there is no consideration with Washington Homes at the moment?
MR. LOYD: Objection
BY MR. NUSSBAUM:
Q. Does Mr. — Does Washington Homes have any of your money?
A. Any of my money?
Q. Yes, sir.
A. Not to my knowledge, no, sir.”

A prerequisite for specific performance is the existence of an enforceable contract. In Tarses v. Miller Fruit & Produce Co., 155 Md. 448, 142 A. 522 (1928), the Court of Appeals stated that “[S]pecific performance will not be decreed of a contract which the parties [have] abandoned.” 6 A. Corbin, Contracts, § 1140 (1962); 71 Am.Jur.2d Specific Performance, § 13 (1973). The issue here is whether the cashing of the deposit checks by Ehler and Krouse operated as an accord and satisfaction. If an accord and satisfaction is found, the parties’ rights and obligations under the contract are discharged. If the contract was terminated, there can be no specific performance.

The Court of Appeals in Mercantile T. & D. Co. v. Rode, 137 Md. 362, 112 A. 574 (1921) quoted with approval 1 R.C.L. 195 where it is stated:

“To constitute an accord and satisfaction in law ... it is necessary that the offer of money be made in full satisfaction of the demand or claim of the creditor, and be accompanied by such acts or declarations as amount to a condition that if the money is accepted, it is to be in full satisfaction and ■ of such a character that the creditor is bound to understand the offer.”

Professor Corbin, in his treatise on the law of contracts (Vol. 6, § 1277) puts it this way:

“ . . . There must be accompanying expressions sufficient to make the creditor understand, or to make it unreasonable for him not to understand, that the performance is offered to him as full satisfaction of his claim and not otherwise.”

In Palladi Realty Co. v. Ohlinger, 190 Md. 303, 58 A. 2d 125 (1948) the Court of Appeals considered a case involving facts similar to the case at bar. There Palladi, in a written contract with Ohlinger, agreed to sell to Ohlinger a property on West Hills Parkway in Baltimore County, Maryland, and to erect a house thereon. The contract reserved the right in Palladi to cancel the agreement if “present prices for material” and wages for labor “increased prior to the date of settlement.” Palladi exercised the right because of increased costs. A letter was sent by Palladi to Ohlinger advising Ohlinger of the increase in the cost of building materials and the cancellation of the contract. The deposit money was returned to Ohlinger along with the letter. The letter was not answered by Ohlinger, and the check was not returned. Slightly less than one month later, Ohlinger filed a Bill of Complaint and requested specific performance of the contract. The check was endorsed by Ohlinger and delivered to the clerk of the court who, in turn, deposited it. Ultimately, the check was paid by the bank upon which it was drawn and charged to Palladi’s account.

Six judges of the Court of Appeals heard the case and were unable to agree. Three judges were of the opinion:

“ . . . [T]he use made of the check constituted an acceptance of the conditions upon which it was tendered, even though this was contrary to the intention of [Ohlinger]. The other three [were] equally firm in their view that the deposit of the check in court in the case in which [Ohlinger was] attempting to enforce the contract was not a tortious exercise of dominion over [Palladi’s] money.” (Emphasis supplied).

None of the judges said that the acceptance of the check did not constitute an accord and satisfaction. The division of opinion in the Palladi case was centered around the manner in which the check was cashed. We glean from the above quoted language that had the check been cashed other than by the method employed, i.e., by endorsing it over to the clerk of the court, that the decision of the Court of Appeals would have been to the effect that the contract was terminated. It is only the peculiar manner in which Ohlinger negotiated the check, representing a deposit of the refund, that caused the division.

In the case now before us there was no endorsement of the check to the clerk of the court; rather the checks were deposited into the respective accounts of Ehler and Krouse. Both Mercantile Trust v. Rode, supra, and Palladi Realty Co. v. Ohlinger, supra, are in accord with 6 A. Corbin, Contracts, § 1279 (1962) wherein it is said:

“The cashing, or the certification, of a check expressly sent in full settlement of a disputed claim, operates as an accord and satisfaction if, at the time, no word of dissent is sent to the party offering it in satisfaction.”

See also 15 S. Williston, Contracts, § 1854 (3d ed. 1972) which states,

“As a matter of law, the use or retention of the check by the. creditor, with knowledge of the condition, is regarded as an assent to it.”

It is indubitable that Washington sent letters of cancellation to the Ehlers and the Krouses in which it is explicit that Washington considered the contracts to be terminated. The letters were accompanied by checks expressly stated to be a refund of the deposit monies. In our view, when the Ehlers and the Krouses, who did not communicate immediately their dissatisfaction with the cancellation and refund, cashed the checks, they accepted the cancellation, and the contractual relationship between them and Washington was at an end. The contracts ceased to exist, and inasmuch as there were no contracts, there could be no breach and no consequent remedy of specific performance. The Chancellor erred in ordering specific performance, by Washington, as to the Ehlers and Krouses. We, therefore, reverse those two decrees.

All appeals except as to the Ehlers and the Krouses, dismissed.

Decree ordering specific performance as to the Ehlers, reversed.

Decree ordering specific performance as to the Krouses, reversed.

Costs to be paid by Washington Homes, Inc.

      . Berens Associated of Washington, a subsidiary of Associated Mortgage Company, Inc. The record reveals Berens to be a Delaware corporation.

      . Washington acknowledges that it should be required to pay back to the appellees the purchase price. Washington would then be at liberty to sell the houses to the appellees, or to other purchasers, presumably at today’s inflated prices. Just what effect the doctrine of lis pendens would have as to the present mortgages is not made clear.

      . Mrs. Ehler did not testify.

      . Mrs. Krouse did not testify.