text:
    MICHAEL WILLIAM DEINHARDT v. STATE OF MARYLAND
    [No. 308,
    September Term, 1975.]

      Decided December 5, 1975.

      The cause was argued before Moylan, Gilbert and Melvin, JJ.

      William F. C. Marlow, Jr., and W. Stanwood Whiting, Assigned Public Defenders, for appellant.

      John A. Austin, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Sandra A. O’Connor, State’s Attorney for Baltimore County, and Steven Silverman, Assistant State’s Attorney for Baltimore County, on the brief, for appellee.
   Gilbert, J.,

delivered the opinion of the Court.

Michael William Deinhardt, appellant, was convicted at a non-jury trial in the Circuit Court for Baltimore County of rape. Following the sentencing of appellant which occurred the same date, an appeal was noted to this Court. Appellant vigorously urges, inter alia, that the trial judge erred in refusing “. . . to allow cross-examination seeking to establish the bias of the complaining witness, where her testimony was the only proof tending to establish lack of consent. . . .”

The appellant met the prosecutrix, apparently for the first time, at approximately 10:45 P.M. on June 1, 1974, in Sweeney’s Lounge, where the prosecutrix worked as a waitress in the restaurant downstairs, in Baltimore City. A conversation ensued between the appellant and prosecutrix, and the two danced and conversed during the course of the evening. Shortly after midnight, the prosecutrix decided to leave the upstairs lounge. She retrieved her purse from behind the bar and, when offered a ride home by the appellant, readily accepted.

According to the State’s case, appellant drove north on the Jones Falls Expressway towards Baltimore County. The prosecutrix noticed that they had passed the exit from the Jones Falls Expressway which led to the street upon which she resided. She wanted to leave the vehicle, but the appellant produced a switchblade knife, “flicked” it open, told her that she could not leave the car, and he then increased the vehicle’s speed to “. . . a hundred miles an hour.” According to the prosecutrix the appellant stopped his car “. . . about twenty, [to] twenty-five minutes . . .” later on a “deserted road” where there were “. . . no lights whatsoever.” The prosecutrix testified that the appellant drove his car into such a position that the passenger’s door could not be opened because of its proximity to a tree. After the appellant had brought the vehicle to a halt, he had the prosecutrix change places with him on the front seat. When the prosecutrix moved onto the driver’s side of the front seat, she attempted to open the door to make good an escape, but she was prevented from doing so by the appellant. A struggle ensued for possession of the knife, and during the course of that altercation, the appellant and the prosecutrix each received several cuts upon their person. The prosecutrix received lacerations on her right hand index finger, her legs and her back. Once the appellant regained control of the knife, he struck the prosecutrix upon the side of her face and ordered her into the back of his vehicle, a station wagon, where she was compelled to disrobe and submit to sexual intercourse.

The prosecutrix told the trial judge that after the sexual act had been completed the appellant stated to her that he “. . . was going to kill me on up the road.” The appellant drove the car for a period of about “10 minutes” when the prosecutrix observed another car approaching. She leaped from the appellant’s car, ran to the approaching vehicle where she sought and obtained the protection of the operator of that car, who telephoned for an ambulance. She was subsequently transported to the Carroll County Hospital. There the prosecutrix was treated for her injuries and the police were notified.

Appellant’s version of the incident is in startling contrast to that of the prosecutrix. He states that he picked up the prosecutrix in Sweeney’s Lounge, and that he drove her at her request into the countryside. They stopped near New Freedom, Pennsylvania, and from the hill on which they were parked one could see the lights of New Freedom. Then the prosecutrix left the vehicle for the purpose of relieving herself. When she returned she grabbed his knife from its resting place on the dashboard, and she immediately stabbed him with it. In his attempt to recover the knife from her, she was cut on the hand. Appellant stated that he threatened to have the prosecutrix arrested, presumably for assault upon his person, and at one point he told her that she could get “thirty years” for her having stabbed him. Immediately thereafter, the appellant says, the prosecutrix became extremely friendly and made sexual advances to him. Mutually voluntary sexual intercourse ensued.

At trial the appellant apparently sought to establish that the rape charge was brought by the prosecutrix in an effort to take the legal initiative and thus diminish the effect of the appellant’s obtaining a warrant charging her with “. . . assault with intent to murder.”

The record reveals the following on cross-examination of the prosecutrix:

“Q. Did Mr. Deinhardt ever threaten to have you charged with assault that night?
Mr. Silverman [Assistant State’s Attorney]: Objection.
The Court: Sustained.
Mr. Marlow [Defense Counsel]: Your Honor, I think this clearly goes to the bias of the witness, and why these charges were brought initially.
The Court: The objection has been sustained, Mr. Marlow. If he would make any complaint against her, there is a proper way to prove it.”

We think the trial judge has missed the thrust of the purpose of defense counsel’s attempted interrogation as to the prosecutrix’s motivation in bringing the charge. The question is not whether the appellant did “. . . make any complaint against her. . but rather whether the prosecutrix was biased, prejudiced, or acting from some ulterior motive. If her answer to the objected to question had been “yes,” the court, depending upon the circumstances, may have attached less credibility to the witness’s testimony. As it was, the judge referred to her as a “woman on the loose” and as an “easy pick up.” If he, as a result of the answer to the question to which he sustained the objection, had learned that she was motivated by fear of a possible prosecution of assault with a knife, he may have completely discredited her testimony.

On September 23, 1975, this Court in State v. DeLawder, 28 Md. App. 212, 216, 344 A. 2d 446, 449 (1975), observed that under the Sixth Amendment to the Constitution, the right to be confronted with the witnesses against him, included the “. . . ‘primary interest secured by . . . the right of cross-examination. Douglas v. Alabama, 380 U. S. 415, 418, 85 S. Ct. 1074, [1076,] 13 L.Ed.2d 934 (1965).’ ” The Supreme Court in Davis v. Alaska, infra, 415 U. S. at 316, pointed out that “ ‘Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.’ ” 28 Md. App. at 216, 344 A. 2d at 449. Our adversary system permits, if not encourages, the advocate to inquire into the witness’s testimony in order to test memory and perception, as well as to impeach the witness so as to discredit his testimony. Cross-examination, however, is not without bounds. The trial judge is vested with broad discretion so as “. . . to preclude repetitive and unduly harassing interrogation. ...” 28 Md. App. at 216, 344 A. 2d at 449.

Chief Judge Orth, in DeLawder, noted that a witness may be discredited by a “. . . cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand.” 28 Md. App. at 217, 344 A. 2d at 449. Bringing to the surface, for view and scrutiny the witness’s motivation for testifying is both a proper and important function of cross-examination and, as such, is a constitutionally protected right. Greene v. McElroy, 360 U. S. 474, 496, 79 S. Ct. 1400, 1413, 3 L.Ed.2d 1377 (1959). DeLawder declares that the denial of effective cross-examination is constitutional error of such magnitude that it is immaterial whether prejudice is not shown or is even totally lacking. See Greene v. McElroy, supra; Smith v. Illinois, 390 U. S. 129, 131, 88 S. Ct. 748, 19 L.Ed.2d 956 (1968); Brookhart v. Janis, 384 U. S. 1, 3, 86 S. Ct. 1245, 16 L.Ed.2d 314 (1966).

In Davis v. Alaska, 415 U. S. 308, 94 S. Ct. 1105, 39 L.Ed.2d 347 (1974), the Court considered a case wherein Davis was convicted of burglary and grand larceny, largely upon the testimony of a juvenile who had been adjudged to be a delinquent as a result of his participation in a burglary. The juvenile had been placed on probation. Davis’s counsel sought to cross-examine the juvenile witness as to the witness’s motivation for testifying. Defense counsel wanted to explore the possibility that the juvenile “. . . made a hasty and faulty identification of . . . [Davis in order] to shift suspicion away from himself as one who robbed the Polar Bar, . . . [and to show that the juvenile] might have been subject to undue pressure from the police and made his identifications [of Davis] under fear of possible probation revocation.” 415 U. S. at 311, 94 S. Ct. at 1108. The State court refused to allow that cross-examination, although the defense was permitted to interrogate solely as to whether the witness was biased. The Supreme Court observed that “. . . counsel was unable to make a record from which to argue why [the witness] . . . might have been biased or otherwise lacked that degree of impartiality expected of a witness at trial.” 415 U. S. at 318, 94 S. Ct. at 1111. The Alaska Supreme Court had affirmed Davis’s conviction on the ground that the scope of the permitted cross-examination was sufficient to convey the concept of the bias of the witness to the jury for its consideration. Davis v. State, 499 P. 2d 1025, 1036 (Alaska 1972). Mr. Chief Justice Burger, for the majority of the Court, said, 415 U. S. at 318, 94 S. Ct. at 1111:

“. . . On the basis of the limited cross-examination that was permitted, the jury might well have thought that defense counsel was engaged in a speculative and baseless line of attack on the credibility of an apparently blameless witness. ... On these facts it seems clear to us that to make any such inquiry effective, defense counsel should have been permitted to expose to the jury the facts from which the jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.”

The opinion of the majority in Davis makes clear that the refusal to allow the defense to demonstrate bias on the part of the prosecutor’s principal witness through cross-examination is a denial of Due Process under the Fourteenth Amendment as well as an infringement upon Davis’s Sixth Amendment rights. See State v. DeLawder, supra.

Although the case now before us was tried non-jury, we believe the holdings of Davis and DeLawder to be, nevertheless, controlling. That Davis and DeLawder were jury trials does not make a scintilla of difference in the application of their rationale to non-jury trials. Where, as here, the trial judge, as trier of the fact and of credibility, limits cross-examination of a witness so as to preclude a demonstration of bias, prejudice or other unworthy motivation on the part of the witness, he prevents the defense from presenting all of the facts, forestalls an adequate basis for assessment of credibility and erodes the purpose of cross-examination, i.e., the search for truth. In short, he places himself in the precarious position of rendering a judgment based upon an incomplete factual predicate.

Paraphrasing Davis and DeLawder, we cannot speculate whether the revelation of the witness’s motivation in testifying would have brought about a different result than that reached by the trial judge. On the other hand, we are unable to state that a disclosure of bias, prejudice or ulterior motives would not have produced a serious question as to the credibility of the witness and possibly injected a reasonable doubt as to the culpability of the accused.

We reverse and remand the matter for a new trial because of the violation of the rights guaranteed appellant by the Sixth and Fourteenth Amendments. At retrial appellant should be afforded an opportunity to show bias, prejudice or ulterior motive, if any, on the part of the principal prosecuting witness.

Appellant has raised a second issue, namely, that the evidence does not indicate that the crime was committed in Baltimore County, and that it does not disclose that the appellant had the intent to commit rape when he asported the prosecutrix into or through Baltimore County. Md. Ann. Code art. 27, § 465.

The trial judge made no specific finding as to whether the rape itself was committed within the territorial confines of Baltimore County, but rather relied upon Md. Ann. Code art. 27, § 465 which provides, in essence, that one may be prosecuted for the crime of rape in any county where the transportation of the victim was begun, continued or ended. The intent to rape occurring before or during asportation, followed by the actual rape, is an essential element of the conferring of jurisdiction upon the county where the asportation of the victim occurred. In the light of our holding, we do not decide the issue inasmuch as at a retrial the alleged defect might well be cured by the requisite proof of the situs of the purported rape or a specific finding of requisite intent to rape formulated or continued during asportation.

Judgment reversed.

Case remanded for a new trial.

      . The record indicates that appellant did endeavor subsequently to obtain such a warrant but the district court commissioner, after checking with the State’s Attorney’s office, refused to issue the warrant. A notation discloses that the commissioner was told by the State’s Attorney’s office that the application for the warrant was “. . . in the form of a defense.”

      . The advocate should bear in mind that part of the art of cross-examining is not to examine crossly. See Ballantine, Some Experiences of a Barrister’s Life 124 (2d ed. 1882).

      . Mr. Justice White dissented and he was joined therein by Mr. Justice Relinquish Mr. Justice Stewart, in a separate opinion, concurred with the majority.

      . In response to appellant’s motion to dismiss on the ground of improper venue and lack of jurisdiction made prior to trial, but not then ruled upon, and renewed at the close of the State’s case, the trial judge quoted this statutory provision, deemed that it conferred jurisdiction on the court, and denied the motion.


source: Caselaw Access Project

author: Orth, C. J.,

license: Public Domain

text:
    FREDERICK BRUCE HYMAN v. STATE OF MARYLAND
    [No. 315,
    September Term, 1975.]

      Decided December 5, 1975.

      The cause was submitted on briefs to Orth, C. J., and Davidson and Lowe, JJ.
    Submitted by Sanford Z. Berman, R. Calvert Steuart and Pickett, Houlon & Berman for appellant.
    Submitted by Francis B. Burch, A ttomey General, Gilbert H. Robinette, Assistant Attorney General, and Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, for appellee.
   Orth, C. J.,

delivered the opinion of the Court.

I

Code, art. 27, § 292 (b) applies to a person who has not previously been convicted of any offense relating to controlled dangerous substances (as defined in art. 27) under the law of Maryland, any other state, or the United States. If such person

(a) pleads guilty or is found guilty of a controlled dangerous substance offense; and
(b) the trial court is satisfied that the best interests of the person and the welfare of the people of Maryland would be served; and
(c) such person consents

the trial court may

(1) stay the entering of the judgment of guilt; and
(2) defer further proceedings; and
(3) place such person on probation subject to such reasonable terms and conditions as may be appropriate; and
(4) require that such person undergo inpatient or outpatient treatment for drug abuse.

Upon violation of a term or condition of probation the court may enter a judgment of conviction and proceed as otherwise provided by law.

Upon fulfillment of the terms and conditions of probation the court shall discharge such person and dismiss the proceedings against him. Such discharge and dismissal

(i) shall be without a judgment of conviction; and
(ii) shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime, including additional penalties imposed for second or subsequent convictions of controlled dangerous substances offenses; but
discharge and dismissal may occur only once with respect to any person.

Upon satisfactory completion of any period of probation on which such person is placed

(a) any public criminal record in any such case shall be expunged;
(b) any expunged arrest or conviction shall not thereafter be regarded as an arrest or conviction for purposes of employment, civil rights, or any statute or regulation or license or questionnaire or any other public or private purpose, except
(i) such conviction shall continue to constitute an offense for purposes of the law concerning controlled dangerous substances or any other criminal statute under which the existence of a prior conviction is relevant.

II

On 7 August 1973 Frederick Bruce Hyman was presented and indicted, charged with violating various offenses of the law relating to controlled dangerous substances. Upon arraignment, a plea of not guilty was entered by the court in absence of counsel. Appearance of counsel for him was filed. The case came on for trial in the Circuit Court for Prince George’s County on 5 December 1973. The docket entry under that date reads:

“Hyman withdraws plea of ‘Not Guilty’ and enters a plea of ‘Guilty’ to counts. Judge Mattingly; Gazdayka, Reporter. Pre-Sentence Report ordered. Sentence date; January 4, 1974 at 9:30 a.m. Bond to continue pending sentencing.”

The docket entry under date of 4 January 1974 reads:

“Pre-Sentence Report, filed and returned. Hyman is sentenced by Judge Loveless, Irwin, Reporter, to the jurisdiction of the Division of Correction for a period of six (6) months and to pay a fine of $250.00. Fine to be paid within sixty (60) days thru the Division of Parole and Probation.
Sentence to incarceration is suspended and the Defendant is placed on probation under the supervision of the Division of Parole and Probation for an indeterminate period of time. Nolle Pros, remaining counts as to Hyman.”

On 16 September 1974 Hyman filed a “Motion to Expunge Record.” He summarized the history of the case through the penalty stage. He alleged that he believed “that it is and will in the future be extremely detrimental to him to have a record of his arrest maintained by the authorities.” He asserted that he had complied with the terms of his sentencing and fell within the purview of art. 27, § 292. He prayed the court pass an order:

“1. Discharging and dismissing the proceedings against him, to wit: Criminal Trial number 13500.
2. Expunging any public criminal record including the arrest record arising out of this offense.”

A hearing on the motion was had on 23 October 1974 and according to the docket entry the motion was “Taken Under Advisement.” On 2 April 1975 the court denied the motion “without prejudice.” Hyman noted an appeal. No reasons for the denial appear in the record before us.

Ill

The issue for decision is whether the court below erred in denying the motion to invoke art. 27, § 292. It is best answered in terms of the question presented by Hyman, which follows what appeared to him to be the issue below:

“When a Defendant has been sentenced and more than 90 days thereafter have expired in a controlled dangerous substance case, does the Court have jurisdiction to entertain a petition for relief under Article 27, Section 292 of the Annotated Code of Maryland.”

We shall assume for the purpose of decision, although the record before us does not affirmatively so show, that Hyman was a first offender within the contemplation of art. 27, § 292 (b) and, therefore, eligible for its benefits upon his plea of guilty. It is manifest, however, that at no time during the trial below, through the penalty stage, was there any indication whatsoever that the court intended, or that Hyman requested or desired, the case to be disposed of under § 292. There is nothing to show that the trial court was satisfied that the best interests of Hyman and the welfare of the people of Maryland would be served if § 292 were applied. The consent of Hyman to such application is not shown. The judgment of guilt was not stayed. Further proceedings were not deferred but sentence was imposed. There was simply no attempt to proceed under § 292. Rather, sentence was imposed and suspended as provided by art. 27, § 641A, which authorizes the trial court, upon entering “a judgment of conviction” to “suspend the imposition or execution of sentence and place the defendant on probation upon such terms and conditions as the courts deem proper,” except that probation may not be granted in excess of five years. See note 2, supra. Section 641A further provides: “If the offense is punishable by both fine and imprisonment, the court may impose a fine and place the defendant on probation as to the imprisonment.” This is precisely what the court here did. The short of it is that clearly there was no recourse to the alternative sentencing procedure provided by § 292.

Maryland Rule 764, § b 1 reads:

“For a period of ninety (90) days after the imposition of a sentence, or within ninety (90) days after receipt by the court of a mandate issued by the Court of Appeals or the Court of Special Appeals upon affirmance of the judgment or dismissal of appeal, or thereafter, pursuant to motion filed within such period, the court shall have revisory power and control over the judgment or other judicial act forming a part of the proceedings. The court may, pursuant to this section, modify or reduce, but shall not increase the length of a sentence. After the expiration of such period, the court shall have such revisory power and control only in case of fraud, mistake or irregularity.”

The court here lost its revisory power over the sentence ninety days after it was imposed, there being no allegation of fraud, mistake or irregularity in its imposition. It was over eight months after sentence was imposed that Hyman sought to invoke § 292. Therefore, the court was without power to modify the sentence by striking the judgment of guilt and the sentence, and then proceeding under § 292 (b). Section 292 is not at odds with, and does not pre-empt, Rule 764.

It is only when the procedures authorized by the sentencing provisions of § 292 (b) have been followed that the discharge, dismissal and expungement provisions of the statute come into play. The court must be satisfied that the best interest of the person and the welfare of the people of this State were served. It should stay the entering of the judgment of guilt, with the consent of the person, defer further proceedings and grant probation. It is then that the person is entitled, upon fulfillment of the terms and conditions of probation, to be discharged, to have the proceedings against him dismissed, and to have any criminal record expunged. The former is a condition precedent to the latter. Because the former was not invoked with respect to Hyman, and now may not be invoked, he is not entitled to the latter. We hold that the court below did not err in denying the motion.

Order of 2 April 1975 affirmed; costs to be paid by appellant.

      . The record submitted to us does not contain a transcript of the proceedings at the trial, either during the guilt stage or the penalty stage. There is nothing in the record before us sufficient to establish to what “counts” Hyman pleaded guilty. He alleged in a “Motion to Expunge Record”, see infra, that he pleaded guilty to the fifth count of the indictment. That count presented that he unlawfully had marihuana in his possession on 12 July 1973.

      . Hyman does not challenge his probation “for an indeterminate period of time.” But see Code, art. 27, § 641A which provides that there may be a grant of probation “for a period longer than the sentence but not in excess of five years.” See Watson v. State, 17 Md. App. 263 (1973), cert. den., 268 Md. 754.
      There is a document in the record dated 4 January 1974 which spells out the conditions of probation. It is a printed form of the Division of Parole and Probation. The “general conditions” are printed and are apparently standard conditions. The special condition, typed therein, reads: “Probation for an indeterminate period of time.
      1. Defendant to pay a fine of $250.00 through the Division of Parole and Probation within 60 days.”
      Hyman signed the document, expressly accepting the probation and agreeing to comply with all its rules and conditions.

      . Hyman states in his brief:
      “Although the aforedescribed Order is silent with respect thereto, the Honorable Ernest A. Loveless, Jr. has advised counsel for Appellant that counsel for Appellant may represent in this brief to the Court of Special Appeals of Maryland that it was the Court’s opinion that the Court had no jurisdiction to grant the petition for relief under Article 27, Section 292, as more than ninety days from the date of sentence had expired before the petition was filed, and that the petition was not denied based upon the merits.”
      In support of the motion filed below Hyman presented a memorandum of points and authorities to the court. In so doing he stated that the issue for the court to decide appeared to be “whether subsequent to the expiration of ninety days from the date of sentence, a defendant can file a motion for consideration under Article 27, Section 292 of the Annotated Code of Maryland.” He noted that there appeared to be a difference of opinion among various circuit court judges.

      . By Acts 1974, ch. 795, effective 1 July 1974, and Acts 1975, ch. 527, effective 1 July 1975, art. 27, § 641 was amended to provide with respect to all crimes much of the substance of what § 292 authorizes as to violations of the controlled dangerous substances law. Section 641A remains intact.

      . The grant of probation must be in accordance with art. 27, § 641A. See 57 Op. Atty. Gen. 518 (1972).

      . We have indicated, note 2, supra, that the grant of probation for an indeterminate period was illegal. We note that the trial court may correct an illegal sentence at any time. Rule 764 a.


author: Lowe, J.,

text:
    O-S CORPORATION et al. v. SAMUEL A. KROLL, INC.
    [No. 240,
    September Term, 1975.]

      Decided December 19, 1975.

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

      Donald N. Rothman and Lawrence S. Greenwald for appellants.

      Mitchell Stevan, with whom were Sagner, Stevan & Harris on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

A motion to vacate an arbitration award may give rise to an infrequent instance where even an equity court may not do equity. The Maryland Uniform Arbitration Act, codified as Subtitle 2, Title 3, of the Courts and Judicial Proceedings Act, provides that a court shall not vacate an award of arbitration “on the ground that a court of law or equity could not or would not grant the same relief.” Cts. Art., Sec. 3-224 (c). This legislative limitation upon judicial review is premised upon the common law consideration of arbitration as a “favored” action,

“ . . . and the awards of arbitrators would not be set aside by the courts unless the arbitrator was guilty of fraud, misconduct or prejudice, had exceeded his authority, or had made a mistake in law or fact appearing on the face of the award.” Bel Pre Med. v. Frederick Contr., 21 Md. App. 307, 316, reversed on other grounds 274 Md. 307.

Adopting that concept statutorily, the General Assembly articulated it by restrictively defining the grounds upon which a court might vacate an award, and expressly proscribed any possibility of substitution of a reviewing court’s judgment for that of the arbitrators. Among the narrow grounds permitting vacation of an award by the courts are the two here in question.

Cts. Art., Sec. 3-224.

“(b) Grounds. — The court shall vacate an award if:
(1) An award was procured by corruption, fraud, or other undue means;... [or if]
(3) The arbitrators exceeded their powers;. . . .” [Emphasis added].

At the heart of this appeal from the Circuit Court of Baltimore City is the question of whether either or both of these grounds permit judicial relief from an award for any reasons other than an apparent improbity. Is there judicial relief available from an arbitration award that was arrived at in good faith but, because of grossly misguided judgment, is shockingly absurd?

It is appellants’ contention that (1) the Maryland Uniform Arbitration Act by employing the words “undue means” and “exceeded their powers,” intended to require a reviewing court to vacate an award which is rendered without any rational basis, and (2) the award rendered in this case is of that type. Appellee concedes that, despite the favor and finality with which arbitration is viewed, a line of cases has developed which holds that there is a distant threshold beyond which reason is so affronted that judicial remedy may be applied. From argument of counsel and from a similarity of authority cited in their briefs, we glean that the parties here may have approached some general agreement of the state of the law, though neither acknowledged it. Essentially appellants would permit us to vacate an “arbitrary” award while appellee concedes us such authority only when the award is “completely irrational.” Our interpretation of the law accords more with appellee; however, its application to the facts in this case does not bode him well.

We hold that when reviewing the fruits of an arbitrator’s award, a judge may withhold only such as were tainted by improbity or based on a completely irrational interpretation of the contract. We recognize the very limited extension of the reviewing court’s scope of review to include authority to vacate an award that is “completely irrational.” Statutory support for this is found not only in the fact that arbitrators “exceeded their powers” when they reach a completely irrational result, but also in the connotation of the words “undue means” in Sec. 3-224 (b) (1). An award that is “completely irrational” is inferentially opprobrious, i.e., “[e]xpressing or carrying a sense of disgrace or contemptuous scorn”, causing it to be suspect in its conception.

The complete irrationality rule has as its genesis the New York Court of Appeals which was said to be “the source of much instruction in this field” by the United States Third Circuit Court of Appeals when it too “held that an award of an arbitrator is not subject to judicial revision unless it is ‘ completely irrational’.” Swift Industries, Inc. v. Botany Industries, Inc., 466 F. 2d 1125, 1131. Although the interpretive dispute between appellants and appellee is superficially semantic, we think the New York rule offered by appellee better reflects how limitedly we see our authority to vacate arbitration awards than does the language offered by appellants. The test urged by appellants is that used in labor arbitrations under the Taft-Hartley Act and is best depicted by a statement in Mogge v. District 8, International Ass’n. of Machinists, 454 F. 2d 510, 513:

“We have held this standard to mean that a reviewing court should not disturb the award so long as the interpretation was not arbitrary.”

An adoption of this standard would permit a review of an interpretation of a contract under arbitration. It is our view that such review is beyond our authority.

If, however, the language of the contract under arbitration permits but one meaning, an arbitrator who does not follow such a clear contractual mandate exceeds his authority as surely as if he had gone beyond the scope of his express arbitration authority. An award so based does not derive from an arbitrary interpretation. Such a result is rather “completely irrational” since the words of the contract are so clear that there is nothing to interpret. We must judicially accept an arbitrary interpretation of a contract by an arbitrator. We shall vacate a completely irrational one. Of the four questions we will consider in light of these limits, only one has been found to be completely irrational.

Facts

Appellee contracted to build a condominium apartment building for appellants. Although the lengthy contract was in considerable detail, for simplicity’s sake we will describe it as one in which the basis of payment was to be the cost of the work plus a fee, subject to an “upset price.” Appellee agreed to construct the building for a fee of $100,000.00 at a cost not to exceed $3,063,480.00. In addition to the payment of the fee, appellants agreed “ . . . to reimburse the [appellee] Contractor for the Cost of the Work. . . .” as later defined. Because of disputes arising over what was to be reimbursed, the parties submitted to arbitration pursuant to the terms of the General Conditions. Four items of the arbitration award were disputed by appellants, whereupon they petitioned the Circuit Court of Baltimore City to vacate the award. Appellee moved for, and was granted, summary judgment leaving the arbitrators’ award intact. Still smarting from these adverse rulings, appellants come to us, seeking relief from the four items in the award which they consider arbitrary, but which in order to vacate, we must find completely irrational:

1. the amounts for wages billed to appellants by appellee in amounts exceeding wages actually paid to workmen on the job;
2. the cost of field overhead added to the “upset price” arising out of work delay, the cause of which was disputed;
3. an additional fee for work performed on an apartment constructed for occupancy by appellant Meyerhoff (who wholly owned the corporate appellant);
4. the rental for equipment used on the job but not billed to appellants by appellee within the time required by the contract.

Procedurally our review is similar to a review under Md. Rule 1086 when we are called upon to review actions tried by a lower court without a jury. In such case we may not substitute our judgment for that of the lower court on the evidence, but may only set aside the court’s judgment when it is “clearly erroneous.” On the other hand, our review here need not seek a preponderance of the evidence to support the award, nor even substantial evidence. There need be only some evidence to meet the test of rationality, i.e., it may be so little as to make the result “arbitrary”, so long as it is not completely irrational.

Labor Costs

In addition to the “fixed fee,” appellants contracted to reimburse appellee for “Cost of the Work.” That term was defined by the contract in pertinent part as:

“ARTICLE 9

COSTS TO BE REIMBURSED

9.1 The term Cost of the Work shall mean costs necessarily incurred in the proper performance of the Work and paid by the Contractor. Such costs shall be at rates not higher than the standard paid in the locality of the Work except with prior consent of the Owner, and shall include the items set forth below in this Article 9.
9.1.1 Wages paid for labor in the direct employ of the Contractor in the performance of the Work under applicable-collective bargaining agreements, or under a salary or wage schedule agreed upon by the Owner and Contractor, and including such welfare or other benefits, if any, as may be payable with respect thereto.
9.1.3 Cost of contributions, assessments or taxes for such items as unemployment compensation and social security, insofar as such cost is based on wages, salaries, or other remuneration paid to employees of the Contractor and included in the Cost of the Work under Subparagraphs 9.1.1 and 9.1.2.”

It is conceded that appellee was awarded more than appellee paid out for labor. Appellee billed appellants for labor reimbursement in an amount equal to the number of hours worked multiplied by the hourly wage appearing in the wage schedule referred to in Sec. 9.1.1 for each type of employee. Appellants contend that the contract provides for reimbursement for hours worked multiplied by the amount per hour actually paid to the workmen. The arbitrators awarded appellee the wages reflected in the schedule rather than limiting the award to wages appellee had actually paid. Further, the arbitrators added 15% of the appellee’s billings to the award for reimbursement of insurances, such as unemployment compensation, social security, etc. under Sec. 9.1.3. The arbitrators agreed with appellee but did not benefit us with their reasoning.

We can see no means of interpreting any of the relevant clauses to provide the slightest rationale for such an award. Because appellee finds the only interpretative reed upon which he hopes to cling, in Sec. 9.1.1 above, we must dissect its wording to determine if it is open to interpretation upon any rational basis. If so, we may not vacate the award even if a rational interpretation is arbitrary.

All pertinent language to be analyzed is found in Section 9 under the subtitle “Costs to be Reimbursed,” i.e., repaid, paid back, compensated for money spent, or .losses or damages incurred. See definition of “reimburse” in The American Heritage Dictionary of the English Language. That which is to be “reimbursed” is:

“Wages paid for labor in the direct employ of the Contractor in the performance of the Work I] under a salary or wage schedule agreed upon by the Owner and Contractor . . . .”

Read in the light most favorable to appellants as limitedly as can rationally be accomplished, it would read:

“Wages paid . . . under a . . . schedule agreed upon. . . .”

In order to arrive at the result reached by the arbitrators, the verb “paid” must be interpreted as meaning not paid, but rather “established,” or “agreed to.” It is completely irrational to hold that wages paid under a schedule means wages set or wages established under a schedule whether paid or not. The only conceivable interpretation which would provide the result reached would not only have to fail to give meaning to participle of the verb “paid” but would have to ignore that the expressed subject of Article 9 was “Costs to be Reimbursed.” It would also have to define the term “Wages paid” as not referring to those paid by the contractor, but as referring to those paid by the owner to the contractor in an amount equal to the “Wages . . . under a . . . schedule . . . .” This spurious reasoning again must ignore “paid” and give a meaning to “wages” which has no basis in or out of the contract. Furthermore, it would be necessary to explain why the eighteen other items under Article 9 conform to the subtitle’s subject matter and to the definition of the “Cost of Work” in Sec. 9.1 which is:

“ . . . costs necessarily incurred in the proper performance of the Work and paid by the Contractor.” [Emphasis added].

We then turn to the record, seeking aught that might provide any possibility of interpreting the contract’s disputed section other than as reimbursement of wages paid. Appellee points to testimony indicating that an agent of appellants discussed the wage schedule, told another agent of appellants that the wage rates charged were not actual costs, that the labor charges were reduced between the first requisition and the second; that appellants’ attorney asked what was meant by “wage schedule” and received the reply, “That’s what we [appellants] have been paying them [appellee] ”; and that a field agent of appellants who negotiated the reduced wage schedule stated that if it had been refused, he would have given the work to a subcontractor. We find nothing here that would permit an interpretation of an uninterpretable clause. The existence of a wage schedule was acknowledged by appellants’ agents and payments thereunder were concededly made. If we assume that appellants’ agent had knowledge that the wage rates charged were not actually those paid by appellee for his labor, such knowledge, even when imputed to appellants, can hardly change the clear language of the contract. Kasten Constr. v. Rod Enterprises, 268 Md. 318, 328-329.

Appellee next notes that Meyerhoff admitted that the phrase made no sense as written with the “or” stricken through, rather than having it left in to indicate an alternative, i.e., reimbursement of wages paid or payment on the basis of an agreed schedule. However, even Meyerhoff cannot put words where words are not. That Meyerhoff denied ever knowing about a schedule, let alone consenting thereto, creates an evidentiary conflict with his own agent, but does not give an interpretive possibility to a clear contract. Nor is such a possibility created by his inability to explain why “wage schedule” was permitted to remain, if he could not explain its purpose. Of course, if there was no rational purpose for the words, the dilemma we faced with “wages paid” would face us again: Why are the words there if they have no reasonable meaning?

We do not find the reference to a wage schedule left without any interpretable purpose as we did with “wages paid.” Such schedule, which was substantially in excess of the wages actually paid, may have been established to set the maximum referred to in the item immediately preceding (Sec. 9.1) providing that:

“Such costs shall be at rates not higher than the standard paid in the locality of the Work except with prior consent of the Owner, . . .”

It would be interpretive logic, explaining the retention of the reference to a wage schedule, to read the two sections together, i.e., that the wages paid for labor would not exceed a wage schedule, the rates of which, if in excess of the standard paid in the locality, were nonetheless consented to by the owner.

Having exhausted every remote possibility of interpreting the contract language to arrive at the result reached, we will remand for the chancellor to vacate so much of the award as was credited to wages which had never been paid by anyone. It necessarily follows that he should vacate as well the award credited to the peripheral wage costs alluded to in Sec. 9.1.3:

“ . . . insofar as such cost is [not] based on wages, salaries, or other remuneration paid to employees of the Contractor. . . .”

Thus the 15% allowance in lieu of compensation insurance, taxes, etc., should apply only to the amounts reimbursed for wages actually paid.

Finally, it need hardly be explained why we find no merit in appellee’s theory that appellants are equitably estopped from asserting the claim for wages because the bills based on the schedule were paid by appellants. If we find a contractual interpretation allowing such payment to be “completely irrational,” it would be “shockingly absurd” to then permit the unjustified sum to be retained. The billing by appellee initiated the wrongful payment. It would seem the doctrine of equitable estoppel would more appropriately apply against appellee than in its favor, since estoppel always involves the implication that the asserting party was misled to his prejudice. Crane Co. v. Onley, 194 Md. 43; Benson v. Borden. 174 Md. 202, 219-220.

Field Overhead

The arbitrators decided among other things:

“2. Respondent is responsible for raising the upset price of the contract by SEVENTY-SIX THOUSAND AND 00/100 DOLLARS ($76,000.00), the amount of field overhead claimed and proved.”

By not holding appellee responsible for $76,000 of field overhead caused by contractual changes at appellants’ behest, the final cost was commensurately reduced. Appellee was entitled to 25% of any savings below a guaranteed maximum, thus enhancing his profit by $19,000 in this instance.

Appellants’ arguments have a persuasive ring to them but because of conflicting clauses of the contract, the question must be ultimately viewed as an interpretive one. Appellants recognize this in their “Post-Trial Memorandum.” They contend that Sec. 10.1.4 of the contract excludes overhead or general expenses from reimbursable costs except as expressly included in Article 9. They continue:

“Article 9, while allowing reimbursement for a wide variety of actual costs, clearly does not turn around and permit reimbursement for overhead, except possibly for Section 9.1.18, which allows reasonable costs and expenditures necessary for the operation of the field office.” [Emphasis partially added].

Although appellants go on to say that costs of operation of the field office are not part of appellee’s overhead claim for delay, we find portions of the record pointed out by appellee testimonially sufficient so that the result reached would not exceed the limits of rationality. The award will stand.

Additional Fee

Half of the ninth floor of the apartment building was to be appellant Meyerhoffs personal apartment. One hundred thousand dollars worth of “extras” went into that apartment. The arbitrators awarded 20% of the labor and material costs as a fee to appellee indicating that it should be paid by “Respondent [The Slade Corporation] and/or JOSEPH MEYERHOFF.”

Appellee contends that the Meyerhoff apartment should be treated as were other apartments which were improved at the behest of the tenant purchasers. Appellants argue to the contrary setting forth three basic reasons:

1. The other prospective owners specifically agreed to the 20% fee. “Nobody agreed to a 20% fee for the Meyerhoff apartment.”
2. Work in the other apartments involved relatively minor amounts. Because the improvements were substantial a 20% fee would not be reasonable.
3. Meyerhoff was not a party to the arbitration.

The testimony clearly indicates that Meyerhoff agreed that all changes made by appellee for the apartments generally would be at a cost plus 20% fee to appellee. Not only do we find sufficient evidence to overcome the test of complete irrationality, there was sufficient to justify the result reached even under a more stringent test.

Meyerhoffs contention that he did not have to pay because his apartment was within the scope of the contract is presumably based upon his ownership of the contracting corporation. He then points to contract provisions that

“7.2 . . . There shall be no Fee increase or decrease for an increase or decrease in the scope of the Contract.”

Whether or not Meyerhoffs improvements were within the scope of the contract was clearly interpretive and in light of the evidence an award either way could not have been vacated as in excess of the arbitrators’ powers.

But appellants further claim that since that result necessarily treats Meyerhoff qua apartment purchaser as distinguished from Meyerhoff qua the contracting owner of the building, the award cannot go against him because he was not a party to the arbitration.

In addition to the tenor of Meyerhoffs testimony accepting, if not recognizing, his participating role in the arbitration, we find in the record the following letter dated July 25,1973:

“Samuel A. Kroll, Inc.
10300 South Dolfield Road Owings Mills, Maryland 21117
In re: O-S Corporation Arbitration
Gentlemen:
I hereby personally guarantee to you that if the arbitrators of the American Arbitration Association decide there is an amount due your Company over and above any amount or amounts found by them to be due by it to O-S Corporation, the resulting net award against O-S Corporation will be paid.
Sincerely,
[s] Joseph Meyerhoff Joseph Meyerhoff
JM:hc”

This is an indication of Meyerhoffs understanding that he personally assumed liability for the results of the arbitration. The question then becomes, was the apartment improvement an issue?

It becomes clear from the testimony that the issue of Apartment 901 was an arbitrable question as one aspect of the dispute. It is not questioned that this issue was submitted first to the architect as a condition precedent to arbitration under the “GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION.” Thereafter the scope of arbitration is broad:

“Any claim, dispute or other matter that has been referred to the Architect . . . shall be subject to arbitration upon the written demand of either party.”

In Bel Pre Med., supra, 21 Md. App. at 327, Judge Davidson said for this Court:

“When the parties have agreed to submit any and all controversies arising out of the contract to an arbitrator, all issues other than those expressly and specifically excluded must be submitted to arbitration.”

No express and specific exclusion was brought to our attention as to Apartment 901. We, therefore, find the additional costs of improving that Apartment within the scope of arbitration and that the award did not exceed the arbitrators’ powers.

Equipment Rental

Appellants concede that equipment rental for use on the job was a reimbursable expense if statements therefore were submitted timely as required by Article 14:

“The Contractor shall, at least ten days before each progress payment falls due, deliver to the Architect a statement, sworn to if required, showing in complete detail all moneys paid out or costs incurred by him on account of the Cost of the Work during the previous month for which he is to be reimbursed under Article 6 . . . .” [Emphasis added by appellants].

Appellee failed to submit such timely statements which appellants contend deprived them of making their own inspection as to whether the equipment was present and necessary. Appellants’ factual arguments as to the substantial savings they might have made by purchasing rather than leasing certain equipment is again persuasive but not so compelling as to render an arbitrator’s award to the contrary completely irrational. The award for equipment rental will stand.

Judgment affirmed in part and reversed in part.

Case remanded: the trial judge is directed to vacate that portion of the award allocated to wages scheduled but not actually paid.

Costs to be divided equally between the parties.

      . The American Heritage Dictionary of the English Language. Opprobrious is thus distinguished from “improbity” which is defined as being a lack of complete and confirmed integrity. Improbity is synonymously defined as “dishonesty” but seems to be shaded less harshly.

      . Lentine v. Fundaro, 29 N.Y.2d 382, 328 N.Y.S.2d 418, 278 N.E.2d 633.

      . It is coincidence, not reason, that causes us to reject a substantial line of federal authority relating to labor relations disputes in favor of a New York State case as did the Court of Appeals (among others) in Bel Pre Med. v. Frederick Contr., 274 Md. 307, despite the fact that New York does not have the Uniform Arbitration Act. Id. at 314, n. 5.

      . Under a clause of the contract appellee [contractor] was entitled to 25% of any savings below a guaranteed maximum cost generated by appellee. That guaranteed maximum was the “upset price.”

      . This followed submission to the architect pursuant to the contract, whose resolution of some issues differed from the subsequent arbitration award.

      . There was ample testimony that a 15% charge was common usage in the industry in lieu of computing insurance and taxes.

      . For analytical purposes, we have omitted the clause which was stricken by Kroll but which discernably appeared in the contract (see p. 7, supra).

      . The testimony of such knowledge was:
      “Q Isn’t it a fact that Melvyn Pugatch asked you whether the wage rates you were charging were your actual costs?
      A Yes, he asked me, sure.
      Q What did you say?
      A We told him no.
      Q You told him no.
      A But we showed him how we determined, and we agreed on the schedule. We showed him why and how, and he says, okay, but we cut it back. That’s between the first and the second requisition on the job. We went through it.
      Q Later on sometime early in January of ’71 when the schedule was increased, it is a fact, isn’t it, you told him the costs had increased at that time because of union negotiations or the union shop?
      A We told him that we had to give our men a raise and the amount of money he was paying did not cover the raises. We also told him the following. We knew there were going to be further raises, and we said to Melvyn, look, we’re going to hold the line. We were anticipating for a year ahead of time. We didn’t know — at that time there were tremendous raises in the construction union. He said, okay, we will go ahead and permit you to take the raises but no more.
      We were anticipating the costs, which came along in June, came along in July, wages kept going up. We don’t have contracts with unions. Ho said,'okay, we will permit this raise but no more. You will have to hold the line . . .”
      The record is disjointed and unclear, being more in the nature of incomplete record extracts than the full report of the arbitration testimony. The record was compiled below by appellee to meet the motion to vacate, but presumably a complete and coherent transcript was not submitted upon appeal. Appellee explained in his brief:
      “What the Appellants argued was, that the award lacked foundation in the arbitration record. In order to meet this assertion, the Appellee compiled the voluminous exhibit consisting of 765 pages, all but the first 37 pages of which are testimony and exhibits before the arbitrators, to show the evidentiary basis for the findings.”

      . Changes or additions not contemplated by the original contract and specifications.

      . Nor do we find that it is irrational not to reduce the fee because the improvements for Meyerhoff were more substantial than for the others as suggested by appellee.


author: Mason, J,,

text:
    WILLIAM EDWARD LAWRENCE v. ROGER ARNOLD GRAHAM
    [No. 988,
    September Term, 1974.]

      Decided December 30, 1975.

      The cause was submitted on briefs to Powers, Lowe and Mason, JJ.
    Submitted by Donna C. Aldridge for appellant — cross-appellee.
    Submitted by James K. Foley for appellee — cross-appellant.
   Mason, J,,

delivered the opinion of the Court.

The appellant, William E. Lawrence, was sued by the appellee, Roger A. Graham, in an action in trover for the conversion of a Cadillac automobile. The trial court directed a verdict for Graham on the issue of conversion and the jury awarded him $3,637.00 in compensatory damages and $1,500.00 in punitive damages. Lawrence filed an appeal from these judgments and Graham filed a cross-appeal.

According to the evidence adduced at trial, Lawrence purchased a two story building from Graham for the price of $29,000.00. As part of the purchase price, Lawrence transferred title and possession of his 1969 Cadillac automobile, valued at $5,000.00 to Graham and received, in return, a deed to the property on June 21,1971. In November of 1971, Lawrence who had handled most, if not all, of the paperwork incident to this transaction, prepared and submitted to Graham a settlement sheet, which indicated Graham had been overpaid. Graham did not dispute the overpayment, but was unable to pay it. At the suggestion of Lawrence, Graham gave Lawrence three post-dated checks in the amounts of $441.00, $376.00, and $386.00, as full payment. These checks were to be cashed in December, January and February, respectively. It was the intention of Graham to pay Lawrence within ninety days, but if he could not get the money, he planned to sell the Cadillac and pay the debt from the proceeds of the sale. In the latter part of December, Lawrence took the December check to the bank and was notified that there were insufficient funds. He contacted Graham, who told him that he was going to sell the car. Lawrence advised Graham not to sell the car, because he still held title to it. Graham later sold the car to Sullivan during the first week in January, 1972 for $4,500.00, $4,000.00 in check and $500.00 in cash. Lawrence found out that Sullivan had the car and, after contacting the State’s Attorney and various police officials, he removed the car from the residence of Sullivan. Graham was then contacted by Sullivan who canceled the sale. As a result, Graham repaid Sullivan $500.00 and did not attempt to cash the $4,000.00 check. When Graham called Lawrence about the car, he denied having it, and refused to return it.

Lawrence, in seeking a reversal of the judgments below, contends:

I. That the trial court committed reversible error in denying his motion for a directed verdict on the question of Graham’s ownership of the Cadillac automobile.

II. That the trial court erred in submitting the question of punitive damages to the jury.

III. That the trial court erred in not allowing him to testify as to his conversation with Graham regarding return of the automobile.

I

The first prong of Lawrence’s two pronged argument is that Graham could not maintain an action in trover for the alleged conversion of the Cadillac automobile, because the title to the car was not in Graham’s name. The evidence reveals that after Graham received the car from Lawrence, as part of the purchase price for his building, Graham never had the title changed to his name. Graham claimed the title was not changed because Lawrence indicated he was going to buy the car back and asked him not to change it. Whatever reason Graham may have had for not changing the title to his name, his right of ownership in the car was not defeated because of this fact.

“. . . title registration merely raises a presumption of ownership which, not being conclusive, is rebuttable by evidence to the contrary if such is produced.” Metropolitan Auto Sales v. Koneski, 252 Md. 145, 155, 249 A. 2d 141, 147 (1969); Liberty Mut. Ins. Co. v. American Auto. Ins. Co., 220 Md. 497, 500, 154 A. 2d 826, 827-8 (1959).

See the Annotated Code of Maryland, Commercial Law Article § 2-401 (2), which states:

“Unless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods . . . even though a document of title is to be delivered at a different time or place;. . .”

It is evident that ownership of the vehicle passed from Lawrence to Graham as part of the consideration for the purchase of the building. Therefore, the fact that Graham did not register the title in his name did not divest him of ownership.

The second prong of Lawrence’s argument is that Graham divested himself of ownership and the right to bring an action in trover when he sold the automobile to Sullivan. Poe’s Pleading and Practice states:

“In order to maintain trover, the plaintiff as a general rule, must show not only that he had at the time of conversion a property in the chattel, either general or special, but also that at the time of the conversion he had the actual possession, or the right to immediate possession.” Yol. 1, § 207 (6th ed. 1970).

See Dungan v. Mutual Benefit Life Ins. Co., 38 Md. 242, 249 (1873); Baltimore v. Norman, 4 Md. 352, 358-359 (1853).

The evidence discloses that Graham sold the automobile to Sullivan for $4,500.00, $500.00 in cash and $4,000.00 in a personal check. The sale occurred on the weekend, and before Graham had an opportunity to cash the check or present it to the bank for payment, Lawrence took possession of the car from Sullivan.

Upon finding that the car had been taken, Sullivan notified Graham that he was canceling the transaction. As a result, Graham repaid the $500.00 to Sullivan and did not attempt to cash the $4,000.00 check.

It is clear that ownership of the car passed to Sullivan at the time payment was accepted and the car was delivered. This payment, however, was made by check and “. . . payment by check is conditional and is defeated as between the parties by dishonor of the check on due presentment.” UCC, § 2-511 (3). See Anderson v. Gill, 79 Md. 312, 318, 29 A. 527, 529 (1894).

Although the instant check was never presented to the bank for payment, Sullivan, in effect, dishonored the check and countermanded payment when he notified Graham he was canceling the transaction. UCC, § 3-511, provides, in part:

“(2) Presentment or notice ... as the case may be, is entirely excused when
(b) Such party has himself dishonored the instrument or has countermanded payment or otherwise has no reason to expect or right to require that the instrument be accepted or paid;

Suit and Wells Equip. Co. v. Citizens Nat’l Bank, 263 Md. 133, 139, 282 A. 2d 109, 112 (1971).

Sullivan’s right to retain or dispose of the Cadillac was conditional upon his making the payment due. UCC, § 2-507 (2). Consequently, when his check was dishonored, Graham had a right to reclaim the vehicle. See Guy Martin Buick v. Colorado Springs Nat’l Bank, 519 P. 2d 354, 359 (Col. 1974). As between the seller and buyer, the seller is entitled to reassert dominion over the goods if the buyer has acquired them by giving a check which he later dishonors. J. White and R. Summers, The Uniform Commercial Code, Sec. 3-6 (1972).

Since Graham was not the owner of the automobile at the time it was taken, the question arises as to whether Graham had a right to bring an action in trover against Lawrence. Although Graham did not have actual possession or the right to immediate possession of the automobile, when it was seized, it is clear he had the right to immediate possession at the time Sullivan rescinded the sale. Therefore, as to Graham, this was the point in time when the conversion of the automobile occurred and his right to bring an action in trover commenced.

“Conversion, in the sense of the law of trover, consists either in the appropriation of the property of another or in its destruction, or in exercising dominion over it in defiance of the owner’s rights or in withholding the possession from him under an adverse claim, ... A forcible dispossession of personal property is not essential to constitute a conversion.” Poe's Pleading and Practice, supra, § 206.

In Saunders v. Mullinix, 195 Md. 235, 240, 72 A. 2d 720, 722 (1950), the Court of Appeals said:

“But the gist of a conversion is not the acquisition of the property by the wrongdoer, but the wrongful deprivation of a person of property to the possession of which he is entitled. Nor need there exist a forcible dispossession of property to constitute an act of the defendant a conversion.”

In Kirby v. Porter, 144 Md. 261, 266, 125 A. 41, 43 (1923), the Court quoted, with approval, from 1 Poe § 522:

“In order, therefore, to give a plaintiff a right of action in trover, it is not necessary that he should be able to show an acquisition of the property by the defendant — for any wrongful interference with the owner’s possession or right of possession is, in law, either a conversion itself, or evidence from which a previous or continuing conversion may be implied.”

Of like import, see Swartz v. Gottlieb-Bauernschmidt-Straus Brewing Co., 109 Md. 393, 401, 71 A. 854, 857 (1909).

Under the circumstances here, we conclude that Graham, who had a right of ownership and a right to immediate possession of the vehicle, after the sale of the vehicle was aborted by dishonor of Sullivan’s check, properly pursued his rights by maintaining an action in trover.

II

Lawrence argues that the Court erred in submitting the question of punitive damages to the jury. We agree.

As a general rule, punitive damages may be awarded where there is an element of fraud, or malice, or evil intent, or oppression entering into and forming part of the wrongful act. Food Fair Stores, Inc. v. Hevey, 275 Md. 50, 53, 54, 338 A. 2d 43, 45 (1975); P. W. & B. Railroad Co. v. Hoeflich, 62 Md. 300, 307, 50 Am. R. 223, 224 (1884).

A more stringent rule applies, however, where the tort arises out of a contractual relationship. In such a case, punitive damages are recoverable only upon a showing of actual malice. H & R Block, Inc. v. Testerman, 275 Md. 36, 44, 338 A. 2d 48, 53 (1975).

An examination of the record here reveals that Lawrence, in settlement of the real estate transaction, overpaid Graham; that Graham gave Lawrence three post-dated checks in payment of this debt, but deposited no funds to cover payment. The record further reveals that although Graham was the legal owner of the Cadillac, the title of the vehicle remained in the name of Lawrence. Additionally, before Lawrence seized the vehicle, he contacted the county and state police and the State’s Attorney’s Office. In fact, when Lawrence removed the car he was accompanied by a police officer.

In Food Fair Stores, Inc. v. Hevey, supra, at page 56 the Court of Appeals observed:

“It has long been recognized in Maryland that where an act, though wrongful in itself, is committed in the honest assertion of a supposed right or in the discharge of duty, or without any evil or bad intention, there is no ground on which punitive damages can be awarded.” 338 A. 2d at 47.

Under the circumstances here, Lawrence seized the Cadillac under an honest but mistaken assertion of right. Therefore, punitive damages should not have been awarded under any theory since malice was totally lacking in either form, actual or implied. Siegman v. Equitable Trust Co., 267 Md. 309, 316, 297 A. 2d 758, 762 (1972).

Because we have concluded that the question of punitive damages should not have been submitted to the jury, it is not necessary to consider the other issue raised by Lawrence.

Ill

Graham, in his cross appeal, argues that the trial court erred in submitting the issue of recoupment to the jury. The thrust of his argument is that since the amount of recoupment sought by Lawrence exceeded the amount of the relief he (Graham) sought, Lawrence’s claim had to be specially pleaded, and could not be proved under the general issue plea. In District Agency Co. v. Suburban, 224 Md. 364, 370, 167 A. 2d 874, 877 (1961), the Court of Appeals held, in effect, that a claim arising out of an independent transaction or seeking relief in excess of the amount sought by the plaintiff, must be specially pleaded. Whereas, a claim arising out of the same transaction may be proved under the general issue plea. Accord Eisenberg v. Air Cond., Inc., 225 Md. 324, 337, 170 A. 2d 743, 748-9 (1961).

Here, the transaction on which Lawrence relied for recoupment arose out of the same transaction, which formed the basis for Graham’s claim. Moreover, the amount of the recoupment sought by Lawrence, at the trial of the case, did not exceed the amount of the claim sought by Graham. Therefore, recoupment was a proper issue for jury consideration.

Judgment awarding compensatory damages affirmed, judgment awarding punitive damages reversed.

Costs to be divided equally.


author: Davidson, J.,

text:
    CITIES SERVICE OIL COMPANY v. FRANCIS B. BURCH, ATTORNEY GENERAL OF THE STATE OF MARYLAND
    [No. 4,
    September Term, 1975.]

      Decided December 30, 1975.

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

      John Henry Lewin, Jr., with whom were Benjamin R. Civiletti and Venable, Baetjer & Howard on the brief, for appellant.

      Thomas M. Wilson, III, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Henry R. Lord, Deputy Attorney General, on the brief, for appellee.
   Davidson, J.,

delivered the opinion of the Court.

On 19 June 1974, Francis B. Burch, the Attorney General of the State of Maryland, filed a bill of complaint in the Circuit Court of Baltimore City against Cities Service Oil Company (Citgo) and Brooks-Huff Tire Company (Brooks), alleging the following violations of the Maryland Antitrust Act, § 38:

1) that Citgo used its economic power over its service station dealers to coerce them to enter into contracts to purchase tires, batteries, and accessories exclusively from suppliers designated by Citgo, thereby unreasonably restraining trade;
2) that Citgo used its economic power over the supply of gasoline to compel its dealers to purchase tires, batteries and accessories, whether wanted or not, from Brooks and other designated suppliers, thereby substantially lessening competition and tending to create a monopoly;
3) that Citgo and its designated tires, batteries and accessories suppliers, including Brooks, established a program of systematic reciprocal purchasing, whereby the suppliers purchased from Citgo a dollar amount of tires, batteries and accessories at jobber prices, equal to the dollar amount of tires, batteries and accessories, which they sold at wholesale prices to their allocated Citgo dealers, thereby unreasonably restraining trade; and
4) that Citgo and the designated tires, batteries and accessories suppliers, including Brooks, vertically allocated and divided the wholesale market of tires, batteries and accessories comprised of Maryland Citgo dealers, thereby unreasonably restraining trade.

In the bill of complaint, the Attorney General sought an adjudication of the illegality of the described practices; injunctions against continuation of the allegedly illegal practices; and, as a prophylactic measure to eradicate the anti-competitive effects of the allegedly illegal practices, injunctions, preventing among other things, Citgo and Brooks from engaging in any business activity or commercial transaction with each other for a period of five years.

On 13 September 1974, Brooks filed an answer in which it denied all of the allegations of unlawful acts. On 16 September 1974, Citgo filed an answer in which, in pertinent part, it denied the allegations of unlawful conduct, and steadfastly maintained that its business activities were completely lawful.

On 1 November 1974, Brooks and the Attorney General stipulated that a “FINAL JUDGMENT AND CONSENT DECREE” should be entered, settling the case between those two parties. The proposed consent decree recited that the parties:

“consented to the entry of this Final Judgment and Consent Decree without trial or adjudication of any issue of fact or law herein, and without this Final Judgment and Consent Decree constituting evidence against or admission by any party with respect to any issue, and without any admission by BROOKS-IIUFF of any wrongdoing or unlawful conduct.”

It enjoined Brooks from:

(A) entering or continuing any agreement with Citgo whereby Citgo would require or suggest that any Citgo station lessee purchase tires, batteries and accessories from Brooks, for seven (7) years; and
(B) engaging in any commercial transaction with Citgo for five (5) years.

The decree provided that Brooks could continue to solicit sales from and conduct business with Citgo service station dealers. The decree expressly disavowed any intention to interfere with Brooks’ rights and responsibilities in regard to any purchase orders placed with Citgo prior to the execution of the consent decree. Additionally, the decree provided that Brooks would serve a copy of the decree on each Citgo service station dealer and on the Maryland resident agent for the Goodyear Tire and Rubber Company, within 30 days of entry.

On 4 November 1974, a hearing was held by Judge Joseph C. Howard. Citgo, stating that it was then not prepared to present evidence, requested a “full hearing.” The parties, including Citgo, presented oral argument on the question of the propriety of the proposed consent decree. On 8 November, all parties filed legal memoranda. On 19 November 1974, the chancellor signed the “FINAL JUDGMENT AND CONSENT DECREE” previously submitted. On 10 January 1975, the chancellor, after making an express determination that there was no just reason for delay, expressly directed the entry of a final judgment upon the claim against Brooks. It is from this final judgment that Citgo appeals.

I

Citgo initially contends that the Maryland Antitrust Act does not authorize the entry of a judgment by consent without a finding by the court that a violation has been committed. In support of its position, it relies upon Art. 83, § 41(1) of the Act which provides:

“The Attorney General, with such assistance as he may from time to time require of the State’s attorneys in the several counties and Baltimore City, shall institute proceedings in equity in the circuit court to prevent and restrain violations of § 38 of this subtitle. In such a proceeding, the court shall determine whether a violation has been committed, and shall enter such judgment or decree as it considers necessary to remove the effects of any violation which it finds, and to prevent such violation from continuing or from being renewed in the future. The court, in its discretion, may exercise all equitable powers necessary for this purpose, including, but not limited to, injunction, divestiture of property, divorcement of business units, and suspension or termination of the right of foreign corporations or associations to do business in the State of Maryland.” (Emphasis added.)

The Attorney General relies upon Art. 83, § 45 of the Act which provides:

“A final judgment or decree rendered in any civil or criminal proceeding brought by the Attorney General under this subtitle to the effect that a defendant has violated this subtitle shall be prima facie evidence against such defendant in any action for damages brought by another party against such defendant under subsection (2) of § 41 of this subtitle, as to all matters respecting which said judgment or decree would be an estoppel as between the parties thereto: provided, that this section shall not apply to civil consent judgments or decrees entered before any testimony has been taken. ’’(Footnote and emphasis added.)

He maintains that this section, which inferentially authorizes the entry of consent judgments or decrees before any testimony has been taken, also inferentially authorizes the entry of such a decree without the finding of a violation.

It is the intent of the General Assembly that in construing the Maryland Antitrust Act courts be guided by the interpretation given by the federal courts to federal antitrust acts.

Section 4 of the Sherman Act, which parallels Art. 83, § 41 (1) of the Maryland Act, provides that:

“The several district courts of the United States are invested with jurisdiction to prevent and restrain violations of sections 1 to 7 of this title; and it shall be the duty of the several United States attorneys, in their respective districts, under the direction of the Attorney General, to institute proceedings in equity to prevent and restrain such violations. Such proceedings may be by way of petition setting forth the case and praying that such violation shall be enjoined or otherwise prohibited. When the parties complained of shall have been duly notified of such petition the court shall proceed, as soon as may be, to the hearing and determination of the case; and pending such petition and before final decree, the court may at any time make such temporary restraining order or prohibition as shall be deemed just in the premises.” (Emphasis added.)

Section 5(a) of the Clayton Act, which parallels Art. 83, § 45 of the Maryland Act provides that:

“A final judgment or decree heretofore or hereafter rendered in any civil or criminal proceeding brought by or on behalf of the United States under the antitrust laws to the effect that a defendant has violated said laws shall be prima facie evidence against such defendant in any action or proceeding brought by any other party against such defendant under said laws or by the United States under section 15a of this title, as to all matters respecting which said judgment or decree would be an estoppel as between the parties thereto: Provided, That this section shall not apply to consent judgments or decrees entered before any testimony has been taken or to judgments or decrees entered in actions under section 15a of this title. ” (Emphasis added.)

Although antitrust statutes do not define or expressly authorize consent decrees which involve neither an admission nor a determination that there has been a violation, federal courts have repeatedly recognized that § 5(a) implicitly authorizes the entry of a consent decree without taking testimony or finding that a violation of the Act has occurred. Indeed, because the entry of a consent decree allows the government to obtain immediate injunctive relief without the expense of litigation, and allows the defendant simultaneously to avoid the expense of litigation and a precedent-setting decision which could be used against him in a private antitrust treble damage suit, the great majority of civil antitrust proceedings brought by the federal government culminate in consent decrees.

We are persuaded by federal authority that Art. 83, § 45 of the Maryland Act implicitly authorizes the entry of a consent decree before the taking of testimony and without a finding of a violation of the Act. We now so hold.

II

Citgo next contends that even had the alleged violations been found, the injunction against Brooks would be improper. It maintains that the seven (7) year prohibition against agreements whereby Citgo would require or suggest that any Citgo station lessee purchase tires, batteries and accessories from Brooks, and the five (5) year prohibition against engaging in any commercial transaction with Citgo, impaired Citgo’s rights to engage in lawful business activities and were not necessary to remove the effects of violations or to prevent such violations from continuing or being renewed in the future, and indeed would prohibit acts or practices which are reasonable in relation to the development and preservation of business or which are not injurious to the public interest.

The entry of a consent decree is a judicial act, which requires the exercise of discretion. Federal courts have recognized that in approving and entering a consent decree in a civil antitrust case brought by the government, a court must exercise its judgment on the propriety of the relief. Generally, the court should not approve an unenforceable or inequitable decree, one which grants relief inconsistent with the government’s complaint, or one procured by fraud or misrepresentation. The court should approve only those decrees which are in the public interest.

In determining the propriety of an injunction in an antitrust case, the court properly may consider the rights of third parties. Such consideration requires balancing the interests of third parties against the public interest, which may require that even lawful activities affecting third parties be prohibited when necessary to correct the evil effects of unlawful conduct. Considerations substantially affecting third party rights must be shown to justify withholding approval of a consent decree.

This balancing process was described in United States v. Carter Products, Inc. There a non-consenting co-defendant in an antitrust action objected to the entry of a final judgment and consent decree against Carter Products, Inc., on the ground that the terms of the decree vitiated an existing contract between the co-defendants “without any judicial determination of [the contract’s] validity. . . .” It asked that consideration of any decree be deferred until after a trial on the merits. In approving the decree, the court balanced the public interest against the co-defendant’s contract rights. It said:

“Generally, if a consent decree will afford substantially the same relief that could be obtained after a hearing upon the merits, such consent procedure should be adopted. It not only redresses alleged violations of antitrust laws, prohibits a continuation of the claimed illegal conduct, and makes available adequate remedy in the event of violations of the terms of the decree, but eliminates time-consuming and expensive trials. While a consenting defendant benefits by avoiding the risk of the prima facie effect of an adverse judgment, the public interest is served by expeditious relief in the elimination of offensive competitive restraints which form the basis of the initial charges. Thus, countervailing considerations of a substantial nature must appear to justify withholding of the requested relief. Accordingly we consider the competing claims of the Government and American.
“The Attorney General emphasizes that in end result the decree will correct the noncompetitive and monopolistic situation which he charges has existed in the manufacture, use and distribution of meprobamate compound for the past seven years; that not only will true competition result by reason of the availability of the product to all pharmaceutical houses on a nondiscriminatory basis, but that the maximum price of twenty dollars will enable them, as well as Carter and American, to make a handsome profit and at the same time substantially reduce the price of the tranquilizing and combination drugs to the consuming public.
“These are weighty considerations which the defendant seeks to overcome by its claim that the decree will invade its contract rights without a judicial determination. However, it is hornbook law that any decree which may be entered upon a stipulation to which American is not a party would not be binding upon it. Thus, should the Court act favorably upon the proposed decree, American would retain all its legal remedies as though no final judgment had been entered. It would still be free to assert and defend the validity of the agreement, either in this action or in any other action it may institute against Carter for recovery of damages for breach of the agreement or other appropriate redress of its claimed rights thereunder. While a net effect of the injunctive provision upon Carter is to withdraw from American the exclusivity benefits of the contract, this is no different from similar provisions which the Supreme Court has upheld in analogous situations to prevent a defendant from performing contracts with third persons who were not parties to the suit.”

Upon balance, the court concluded that the consent decree should be approved and entered.

Here the parties agree that Citgo, unlike the non-consenting defendant in Carter, does not have a contract with Brooks. Rather, it has a “business relationship” with which the consent decree will interfere. According to Citgo, this relationship generated $113,000 of trade in the first seven months of 1974. In addition, according to Citgo, the Attorney General is proposing “by similar threats of costly litigation, to exact similar five and se^en year agreements from all of Cities’ tires, batteries and accessories customers . . . ,” thereby destroying Citgo’s tires, batteries and accessories business in Maryland, without an adjudication that the Antitrust Act was violated.

What Citgo ignores is that the consent decree is predicated upon correcting the alleged violations of the Act. The seven year prohibition against agreements whereby Citgo would “require” its lessees to purchase tires, batteries and accesssories from Brooks can be construed as necessary to restrain alleged violations of the Act, and the prohibition against agreements whereby Citgo would “suggest” the same can also be viewed as necessary to remove the effects of past alleged violations. In addition, the five year prohibition against engaging in any commercial transaction with Citgo, which proscribes lawful as well as unlawful activities, can be regarded as necessary to restrain alleged violations and to remove the evil effects of past alleged violations. The prohibition of practices for the purpose of eradicating the evil effects of unlawful conduct cannot constitute a prohibition of “practices which are reasonable in relation to the development and preservation of business or which are not injurious to the public interest,” and is not proscribed by § 36 of the Act.

Moreover, Citgo is not bound by any terms of the decree. Citgo is free during the next five years to carry on its usual business of selling tires, batteries and accessories with any distributor other than Brooks. In addition, Citgo retains any legal remedies it may have against Brooks for interruption of their business relationship. Finally, Citgo reserves its right, in this or any other litigation, to assert and defend the validity of its practices and to prove that its relationships with Brooks and other distributors have no anti-competitive purpose or effect.

Weighing Citgo’s alleged economic harm and future irreparable injuries resulting from the existence and operation of the consent decree during Citgo’s defense of the litigation still pending, against the public benefit to be derived from prompt redress of the alleged violations of the Act, without a time-consuming and expensive trial, we cannot say that the chancellor abused his discretion in approving and entering the decree. His judgment as to the propriety of the consent decree will be affirmed.

Ill

Citgo finally contends that it was denied due process of law because it was not accorded a “full hearing,” on the propriety of the decree, as it had requested. We do not agree.

The question of the type of hearing required in an adjudicatory proceeding frequently has been considered. Courts and commentators have recognized that the submission of evidence is not required to characterize a “full hearing” except where facts are in dispute. In his treatise, Professor Davis states:

“Of great consequence is the rather elementary proposition that the method of trial is designed for resolving issues of fact, and that the method of argument, not the method of trial, is normally the appropriate oral process for resolving non-factual issues of law and policy and discretion.”

To the same effect, a federal Court of Appeals said:

“Where no genuine or material issue of fact is presented the court or administrative body may pass upon the issues of law after according the parties the right of argument.”

Here the essential facts that a substantial business relationship existed between Brooks and Citgo, and that that relationship would be interrupted, were not disputed. The chancellor’s determination of the propriety of the consent decree did not depend upon an adjudication of fact, but rather upon the resolution of non-factual issues of law, policy and discretion. Citgo presented oral argument and submitted a legal memorandum. While under other circumstances an evidentiary hearing might be necessary before approval and entry of a consent decree in a civil antitrust case brought by the government, we now hold that under the present circumstances, such an evidentiary hearing was not required.

Judgment, affirmed.

Costs to be paid by appellant.

      . Md. Ann. Code (1957, 1969 Repl. Vol., 1974 Cum. Supp.) Art. 83, § 36 et seq. Effective 1 July 1975, the Act was repealed, 1975 Laws of Maryland Ch. 49, § 1, and reenacted as Md. Ann. Code (1975) Commercial Law Article, § 11-201 et seq.

      . See Commercial Law Article § 11-204.

      . Maryland Rule 605 a.

      . See Commercial Law Article § 11-209 (a).

      . See Commercial Law Article § 11-210.

      . Art. 83, § 41 (2) provides in pertinent part:
      “Any person who has been injured in his business or property, or is threatened with such injury, by a violation of § 38 of this subtitle may maintain an action in the circuit court for damages, or for an injunction, or both, against any person who has committed such violation. If, in an action for an injunction, the court issues an injunction, the complainant shall be awarded costs and reasonable attorney’s fees. In an action for damages, if injury is found to be due to a violation of § 38 of this subtitle, the person injured shall be awarded three times the amount of actual damages resulting from that violation, together with costs and reasonable attorney’s fee.”

        See Commercial Law Article § 11-209 (b>.

      . Art. 83, § 36; see Commercial Law Article § 11-202 (a) (2).

      . 15 U.S.C. § 4 (1970).

      . See also 15 U.S.C. § 25 (1970).

      . 15 U.S.C. § 16 (a) (1970).

      . See e.g.. United States v. Automobile Mfr. Ass’n., 307 F. Supp. 617, 620 (C.D. Cal. 1969), aff'd. mem. sub nom. City of New York v. United States, 397 U. S. 248, 90 S. Ct. 1105 (1970); United States v. CIBA, 50 F.R.D. 507, 510, 514 (S.D. N.Y. 1970); United States v. Ling-Temco-Vought, Inc., 315 F. Supp. 1301, 1308 (W.D. Pa. 1970); United States v. Carter Products, Inc., 211 F. Supp. 144, 148 (S.D. N.Y. 1962); Callman, The Law of Unfair Competition, Trademarks and Monopolies § 87.1 (d) (1) at 85, n. 57 (1968).
      In United States v. Brunswick-Balke-Collender Co., 203 F. Supp. 657, 661-62 (E.D. Wis. 1962), the government refused to sign a consent decree because it omitted any admission or adjudication of guilt. The defendant made a motion to the court to enter the decree nonetheless. The court entered the decree, holding that the defendant had an unqualified right under the proviso to § 5(a) to end the litigation without an adjudication or admission of guilt, which could be used against him in a triple damages action.

      . United States v. Automobile Mfr. Ass’n., supra at 621; Lingstrom & Tighe, Antitrust Consent Decrees ix (1974).

      . Art. 83, § 41, supra pp. 434-35.

      . Art. 83, § 36; see Commercial Law Article § 11-202 (b) (2).

      . United States v. Swift & Co., 286 U. S. 106, 115, 52 S. Ct. 460, 462 (1932).

      . United States v. International Tel. & Tel. Corp., 349 F. Supp. 22, 25 n. 2 (D. Conn. 1972), aff'd. mem. sub nom. Nader v. United States, 410 U. S. 919, 93 S. Ct. 1363 (1973); Automobile Mfr. Ass’n., Inc., supra, 307 F. Supp. at 621; Carter Products, Inc., supra, 211 F. Supp. at 148; United States v. Radio Corp. of America, 46 F. Supp. 654, 655 (D. Del. 1942).

      . ITT Corp., supra; Automobile Mfr. Ass’n., supra; Carter Products, Inc., supra.

      . United States v. United Liquors Corp., 77 S. Ct. 208, 210 (1956); United States v. United States Gypsum Co., 340 U. S. 76, 88-89, 71 S. Ct. 160, 169 (1950); United States v. Bausch & Lomb Optical Co., 321 U. S. 707, 724, 64 S. Ct. 805, 814 (1944).

      . 211 F. Supp. 144 (S.D. N.Y. 1962).

      . 211 F. Supp. at 148-49.

      . United States v. National Lead Co., 63 F. Supp. 513, 525 and n.8 (S.D. N.Y. 1945) aff'd, 332 U. S. 319, 67 S. Ct. 1634 (1947). See also National Licorice Co. v. N.L.R.B., 309 U. S. 350, 366, 60 S. Ct. 569, 578 (1940).

      . See Commercial Law Article § ll-202(b)(2).

      . See Davis, Administrative Law Treatise §§ 7.01-7.06 (1958).

      . Id. at 409.

      . Producers Livestock Marketing Ass’n. v. United States, 241 F. 2d 192, 196 (10th Cir. 1957), aff'd. sub nom. Denver Union Stock Yard Co. v. Producers Livestock Marketing Ass’n., 356 U. S. 282 (1958); accord Persian Gulf Outward Freight Conference v. Federal Maritime Com’n, 375 F. 2d 335, 340-41 (D.C. Cir. 1967).