Impala Platinum Ltd. v. Impala Sales (U.S.A.), Inc.

Orth, J., delivered the opinion of the Court. STATEMENT OF THE CASE This case began on 7 February 1975 with an action of assumpsit filed in the Circuit Court for Cecil County by ²⁹⁹ Impala Platinum Limited (Impala) against Impala Sales (U.S.A.), Inc. (Sales) to recover $730,141.18 for goods sold and delivered, namely platinum and platinum group metals, 1 during the period 7 June 1974 to 26 January 1975, and the issuance of attachment on original process against Colonial Metals, Inc. (CMI). On 1 April 1977, after an eleven day trial before a jury, the case ended, as to the claim of Impala against Sales with the entry of a judgment n.o.v. in favor of Impala against Sales in the amount of $730,141.18 with interest, and, as to a counterclaim by CMI, with the entry of a judgment absolute in favor of CMI against Impala in the amount of $2,102,312. On 2 May 1977, it concluded as to the garnishee action with the entry of a judgment absolute against CMI, garnishee, in the amount of the judgment in favor of Impala against Sales with interest from 7 February 1975.

On 26 April 1977 the court issued an order pursuant to Maryland Rule 605, whereupon the parties noted appeals to the Court of Special Appeals. On 28 April Impala appealed “from that portion of the judgment... awarding the sum of $2,102,312.00 to [CMI] on its Counterclaim against Impala..., pursuant to the jury’s verdicts on Counts I and V of the Counterclaim of [CMI] against Impala____” On 29 April CMI appealed “from that portion of the Judgment... in favor of... Impala ... against... [CMI] on Counts II, III, IV and VI of the Amended Counterclaim, which judgment was entered pursuant to the direction of the Lower Court.” 2 The same day Sales appealed “from that portion of the Judgment... awarding the sum of $730,141.68 with interest thereon ... which Judgment was entered by reason of granting [Impala’s] Motion for Judgment N.O.V. contrary to the Jury’s verdict.” On 2 May CMI, garnishee, noted an ³⁰⁰ appeal from the judgment of condemnation absolute entered that day in the attachment portion of the case. We certified the case for review before decision by the intermediate appellate court. 3 THE FACTS The underlying basis of the litigation is not disputed.

Impala was formed in South Africa in 1967 to mine, refine and market platinum from a concession located in the territory of Bophutswana. Prices for dealer transactions in platinum fluctuated widely. Impala sought contracts of extended duration with fabricators and consumers other than dealers to establish set producer prices in order to provide greater stability and to enable more reasonable planning for future production quantity levels. It acquired the entire interest in Ayrton Metals, Ltd. (Ayrton), an established broker or dealer in metals with headquarters in London, which, prior to the acquisition, had been unaffiliated with any producer of metals and purchased and sold on the world market individual lots of metals wherever produced, and whether virgin or recovered metal.

Through Ayrton, Impala negotiated some supply contracts with consumers in the United States, although, according to Impala, Ayrton continued to operate primarily as a dealer, buying and selling metal from many sources without direction from Impala. In 1971 Sales was formed as 100% subsidiary of Impala to give Impala “a presence in the United States.” From its headquarters in New York City, Sales sought out ultimate consumers of platinum in the United States with whom to enter into contracts for the supply of Impala-produced platinum. Impala sold to Sales at a price 5% below the producer price and Sales negotiated long-term contracts with consumers at the producer price. On 1 September 1972 Impala and Sales executed two contracts to assure to Sales the supply of the Impala-produced metals, ³⁰¹ platinum and palladium (the Supply Contracts).

The Supply Contracts set yearly limits on the amounts of the metals Impala was bound to supply and Sales was bound to order. There was an amendment in the middle of September with respect to the limits on the amount of metals. The two Supply Contracts contained substantially the same terms, covering, for example, the type of material, its purity, quantity and price, price protection, delivery, documents to be furnished, title and a prohibition against assignment of rights and obligations thereunder by one party without prior written consent of the other. Clause 10 required that payment in U.S.A. dollars be not later than 30 days after delivery.

There were two provisions for termination. Clause 11, entitled “DURATION,” provided: “This agreement shall commence from August 1st, 1972 and shall be deemed to have been renewed automatically each year on the same terms and conditions, unless notice of termination is given by the one party to the other (Six) 6 calendar months prior to the expiry date.” Clause 16, entitled “BREACH OF CONTRACT,” read: “(a) Should either the SELLER or the BUYER commit a breach of any of the terms and conditions of this Agreement and fail to remedy such breach within (Fourteen) 14 days of receipt of written notice by the non-defaulting party calling upon the defaulting party to do so, the non-defaulting party shall be entitled to terminate this Agreement forthwith after the expiry of the said period of (Fourteen) 14 days. Termination shall not prejudice the non-defaulting party’s rights under this Agreement to recover from the defaulting party any claim for damages for breach of contract or otherwise, but subject always to sub-clause (b) hereof. “(b) No claim for consequential loss shall lie against the defaulting party for any breach of this Agreement.” ³⁰² CMI was a body corporate of this State with its principal place of business located in Elkton, Maryland. It was engaged in the sale of platinum both before and after processing.

CMI had purchased platinum from Sales, which had sought to negotiate a supply contract with CMI, and from Ayrton and other dealers, on a dealer’s price basis. By letter agreement dated 3 October 1972 from Impala and accepted by CMI (the Agreement), CMI acquired all of the stock of Sales upon transfer of 45% of the stock of CMI to Impala. 4 Paragraphs 1, 2 and 4 dealt with the exchange of the stock and with who were to be the directors of Sales. Under paragraph 5 Sales continued to have the right to buy from Impala and Impala had the right to sell to Sales platinum “on the same terms as at present obtain.” Impala reserved the right in paragraph 6 “to deal direct with companies engaged in the manufacture of automobiles in the U.S.A. who may require platinum or platinum group metals for the manufacture of catalytic converters for the control of exhaust emissions.” Paragraph 7 “specifically recorded that [Impala’s] subsidiary and agent in the United Kingdom, Ayrton ..., has certain contractual obligations with various consumers in the United States of America and these will continue undisturbed by the arrangements set out above and neither [CMI] nor Sales ... will have any entitlement to commission or other interest in respect of such sales. A list of these customers will be furnished.” The list was furnished in a letter from Impala to CMI under date of 1 November 1972.

It designated fourteen companies and specified the metal sold to each of them. Paragraph 8 read: “Subject to the provisos in Paragraphs 6 and 7 above, the intention of [CMI] and Impala ... is that all further sales of platinum and platinum group metals in the American Continent shall be promoted through and effected by Sales ... for the benefit of Impala ... and [CMI].” ³⁰³ Paragraph 9 “specifically recorded that ... Sales ... is obligated to provide [Impala] with certain market intelligence and, at times, technical liaison with its customers in the U.S.A. for which a fee of U.S. $38,000 per annum is currently payable by [Impala].” By paragraph 10 Impala guaranteed to CMI “that for a period of three years after the sale of ... Sales ... to [CMI] the profits of ...

Sales ... after charging all expenses, but before providing for taxation, including the fee of U. S. $38,000 per annum referred to in paragraph 9 above, will not be less in any twelve months’ period than U. S. $120,000. Impala... further hereby undertakes to make good any shortfall below the above mentioned figure of $120,000 within three months after the close of the twelve months’ period. This undertaking shall continue until December 31, 1975 and shall continue thereafter indefinitely unless terminated by twelve months’ prior notice.” Paragraph 15 “specifically recorded that the present arrangements whereby Impala... affords [CMI] 60 days credit on platinum or platinum group metals required for its own purposes shall remain unaltered by this agreement, but no discounts and/or rebates offered by Impala ... to Sales ... and/or [CMI] shall be available to both companies in respect of the same consignment of material.” The arrangement between Impala and CMI as evidenced by the Agreement did not work out as the parties apparently hoped. Early in 1975 Impala invoked the termination clauses bf the Supply Contracts.

On 14 January 1975 it gave Sales notice by registered mail in terms of clause 11 that the platinum Supply Contract and its amendment was terminated as of 31 July 1975. On 21 January it gave Sales notice in like manner and language of the termination of the palladium Supply Contract and its amendment. A copy of each letter was sent to CMI. On 21 January Impala also wrote Sales concerning the platinum Supply Contract.

It asserted that Sales was in breach of clause 10 providing for payment within 30 days and declared that “pursuant to clause 16 (a) of the [Supply Contract]... said agreement will terminate fourteen (14) days after your receipt of this notice, unless you cure the payment default hereinbefore indicated within said fourteen ³⁰⁴ (14) day period.” On 14 February 1975 Impala gave like notice of the termination of the palladium Supply Contract. In the meantime, on 7 February, it had sued Sales for the money due for metals supplied. The center of the controversy was the termination by Impala of its Supply Contracts with Sales which emasculated the Agreement between Impala and CMI, leaving CMI with no guaranteed quantity of platinum at producers’ prices less 5%. Evidence adduced through testimony and documents during the eleven days of trial reflects the divergent claims of the parties with respect to the birth of the Agreement and its demise.

We give a compendium of this evidence. The Agreement, according to Impala, was the culmination of negotiations begun when its New York lawyers advised it to provide Sales “with a more American personality.” CMI now alleges that the Agreement was sought by Impala “to mask its ‘presence’ in the United States” in anticipation of tax and anti-trust problems. Correspondence in July and August 1972 from Impala to Sales regarding the matter was sent to the home of the manager of Sales because it contained “points of reporting which might go against American Law. Impala cautioned Sales that care must be taken in the wording of letters between them. “From our side any actions which we wish to be taken will be passed on to you as suggestions____” Impala told Sales that the “fundamental problem” was to give Impala a “cast iron defense if we were challenged in the U.S. Courts,” and that the best solution seemed to be to effect a merger with an existing U. S. company.

CMI was Impala’s choice. On 11 August 1972, Impala wrote Sales: “Broadly speaking, what we have in mind is that we could offer [CMI] a business with an assured income plus financial backing and a guaranteed supply of metal.” Sales replied on 23 August, affirming that CMI was a likely choice because it was “very dependent upon Impala ... for its metal supply and should therefore at all times be amenable to its wishes.” About the middle of September 1972, Impala sent Christian Jonker, then the Vice President and Manager of Sales, to CMI to relate Impala’s offer to merge Sales with CMI. A further meeting was held at CMI on 3 October. Jonker, Ian Greig (Impala’s ³⁰⁵ Deputy Chairman) and the three principals of CMI, John Manley (Chairman, President and Treasurer), Ron Davies (Vice President), and George Benvegno (Secretary) participated in the discussion.

CMI believed that the entire value of Sales to CMI “lay in [CMI’s] ability to earn commissions on the metals which they sold,” so CMI was concerned about the duration and permanence of any agreement. Davies testified: “I was concerned that there be no termination clause. And I discussed that with my colleagues. When we thought the proposal over on our own and then subsequently in discussions with Mr. Greig, I said that I was happy to see there was no such termination clause.

And he agreed that that was so.” Greig was asked at trial if there had been any discussion regarding the terms or duration of the agreement. He replied: “I think later in the afternoon, either shortly before or shortly after signing, Mr. Davies said to me, ‘Is this a permanent arrangement?’ And I said, ‘So far as anything in business is permanent, yes.’ ” CMI’s view is that the evidence showed that a condition precedent to payment under the Agreement was that commissions to be paid by Impala would be sufficient to cover the cost of the expanded enterprises of CMI and Sales including CMI’s purchases of platinum for its own account, CMI losses, and CMI capital expansion. “The entire value of Sales ... acquired by the [Agreement] for CMI, as admitted by Impala... via Jonker [later Assistant Marketing Manager of Impala] at trial, lay in the commissions which were to be generated by Sales ... on all further sales of platinum group metals in the American Continents and that this joint venture would be permanent, in exchange for the permanent transfer to Impala ... of 45 percent ownership in CMI.” The Agreement came out of the meeting of 3 October. It seems that all parties agree that the Supply Contracts between Impala and Sales were not discussed during the negotiations leading to the Agreement or prior to 16 November 1972 when settlement was made on the agreed exchange of stock. Impala says that “Greig would have had no hesitation about describing the terms of the September 1, 1972 agreements had he been asked whether there were such ³⁰⁶ agreements, but the subject was never brought up by CMI, and it did not occur to Greig to mention them.” It alleges that “CMI knew that such supply contracts were customary, for the industry in general and for Impala in particular, and assumed that ‘such terms as at present obtained’ [set out in clause 5] might include metal allocations.” Impala also points out that when CMI became the sole stockholder of Sales, it voted its three principals as members of Sales’ board of directors and the board elected them into the offices of chairman, president, secretary and treasurer.

They had full access to the files of Sales, which contained the Supply Contracts. To CMI, however, the existence of the Supply Contracts was “withheld” from it. It noted that, as anticipated by the Agreement, two Impala nominees, K.A.B. Jackson, Managing Director and Chief Executive of Impala (he said that he started that Company) and Jonker, Vice President and Manager of Sales, who later became Assistant Marketing Manager of Union Corporation, a subsidiary of Impala, were elected to the Board of Directors of CMI. Jackson was a director of CMI, Sales and Impala, and Jonker a director of Sales and CMI.

CMI believed that the Contracts were inconsistent with the Agreement and with the representation of a permanent relationship with Impala. After the 3 October Agreement, Impala’s subsidiary, Ayrton, continued to sell metals. It is agreed by all parties that no commissions on any sales made by Ayrton were paid by Impala to Sales. Unknown to CMI, on 22 and 23 November 1972 Impala met with Universal Oil Products (UOP), a manufacturer of catalytic converters for use in automobiles, to discuss the sale by Impala to UOP of 90,000 ounces of platinum.

On 24 November Arthur Byng Jackson of Impala and Jonker of Sales visited CMI. According to Impala, CMI requested that it or Sales be permitted to approach the United States customers who, prior to 3 October 1972 had been obtained by Ayrton, with respect to sales of metals other than those which had been the subject of previous sales and Impala turned down that request. Jackson described to CMI the negotiation of possible sales to UOP and explained that, “despite the exclusion for sales to automobile manufacturers, ³⁰⁷ such sales would literally be subject to a 5% price markup or commission to Sales ... under the [Agreement] because UOP was not itself a manufacturer of automobiles.” He added that Impala “legitimately could and would work out a deal by which the automobile manufacturing customers of UOP would themselves buy the metal from Impala (in which case clearly no 5% commission would be due to Sales ...) and have UOP process it for them.” Jackson proposed as an alternative that CMI agree to a contract revision to eliminate sales to UOP from coverage. Impala says that CMI so agreed.

CMI asserts that no such agreement was reached since all parties anticipated a written memo containing the terms to be agreed upon. When the memo was received from Impala, its terms were never accepted as an amendment to the Agreement because they did not follow what had been discussed. A handwritten note written by Jonker at the bottom of one of the copies of the memo stated that there had been no discussion or decision on the provisions of the memo having to do with sales by CMI to Ayrton customers. CMI replied to Impala, refusing the terms, and, according to CMI, Impala acknowledged the refusal “and the matter of such an amendment to exclude UOP never came up again.” There was evidence tending to show that in May and October 1974, Impala, “dissatisfied with several developments,” among them delay in payment for metals shipped to CMI, suggested termination of the Agreement.

CMI rejected the proposal and Impala continued to perform under the Agreement through January 1975. In August 1974, and thereafter, when amounts due had substantially increased, Impala demanded a reduction in the overdue balance, pointing to regulations of South African authorities which required that the indebtedness not exceed $100,000. At CMFs request, Impala agreed that the overdue amount might remain as high as $200,000 provided it be reduced in periodic stages to $100,000 by December 1974. Sales did not adhere to this schedule and by the latter part of January the indebtedness was $730,141.18, $181,516.18 of which was sales to other customers of Sales for which the terms of payment were 30 days, and $548,625.00 of which was sales to CMI. ³⁰⁸ Impala, concluding that it could not collect what was due in the ordinary business way and no longer willing to continue to deliver metal for which it was not being paid, notified Sales, as we have indicated, that it was terminating the Supply Contracts.

CMI sees the events leading to the termination of the Supply Contracts differently. It refers to evidence showing that despite its refusal to amend the Agreement to permit Impala to sell to UOP without paying commissions to Sales, Impala entered into contracts with UOP for the sale of metals in April 1973 and July 1974. On 29 April 1974 Impala met with officers of the conglomerate, Pratt and Whitney, and unknown to CMI, agreed that Impala would enter into a letter of intent to sell $50,000,000 worth of platinum to that company. Two days later Jackson and Jonker met with CMI’s officers at Elkton.

Impala documented this meeting, by a confidential memorandum written by Jackson which stated in part that “the danger signals to [Impala’s] marketing policy in the U.S.A. have been sounded loud and clear. There is a complete refusal at every meeting to see Impala’s point of view and as the Elkton operation increases in profitability and complexity it will become more difficult to disengage. It would seem prudent to disengage from CMI by the end of this year----” On 7 May 1974, Impala, through Jackson and Jonker, met with its attorneys in New York to discuss disengaging from CMI. At the time both Jackson and Jonker were on the board of directors of CMI and Sales.

On 29 May Impala wrote CMI of its intent to disengage from the Agreement. CMI “replied with dismay and surprise at the unilateral intention to break their October 3,1972 Agreement and emphasized CMI’s wish to maintain the association as required by the ... Agreement.” On 1 November 1974, after concluding a longer contract with UOP, Impala met in New York with CMI. Greig informed Manley, Davies and Benvegno that Impala intended to “disassociate” itself from the Agreement and regain “control” of Sales on terms which CMI termed as “unpleasant,” and, in CMI’s view, threatened “even less pleasant” alternatives if CMI refused Impala’s proposed ³⁰⁹ route of disengagement.

On 13 November 1974 Jackson wrote Greig that it appeared from information from Greig that CMI “has received the message loud & clear and that we will be able to disentangle ourselves from the present situation---We still view a clean-cut with CMI, followed by a normal contract for [platinum] supply to CMI as an ordinary, but favored customer as the only acceptable way out. A second point is the future of [Sales] after the break with CMI. We would not wish to make any arrangements for new partners for [Sales] for a while.... We agree with your firm stand against CMI’s demands regarding possible business with Pratt and Whitney and our possible future association with other companies.

They should get the very clear message that we are getting out of the business associations with them and will only allow them a favored customer status in return.” CMI refused Impala’s offer to compensate it for terminating the Agreement. Thereupon on 19 November 1974 Jackson informed Greig by intra-company telex: “In view of the anticipated reaction from CMI, we should cease communication with them and in January, 1975 use Clause 11, Page 4, to terminate the supply of metal to ... Sales between now and August 1, 1975, the existing contracts between ... Sales and its customers must be rewritten with whatever new company we establish in U.S.A. or Canada.” When the termination notices were sent to Sales by Impala, Impala telexed each of Sales’ customers informing them that Impala had terminated its metal supply agreement with Sales as of 5 February 1975.

Impala asserts that “[fjrom and after January, 1975, Sales ... simply stopped doing business. It made no efforts to sell metals, and placed no orders for metals with Impala. Nor did it make any effort to continue by using alternate sources of supply of platinum____” According to CMI, Sales ceased doing business about 5 February 1975 because Sales had no metal at that time, Impala had terminated its supply, was no longer backing contracts between Sales and its customers, ³¹⁰ and had so notified the customers. It was on 7 February 1975 that Impala sued Sales for unpaid balances on the common counts and filed an attachment on original process against CMI.

CMI said the action was brought despite the fact that from 7 March 1973 to the date suit was filed, Impala had granted, and not revoked, credit to CMI for as long as it wished, provided it agreed to pay interest at varying and increasing rates on the balances. TRIAL BY A JURY The threshold question is whether the action was subject to trial by a jury. Impala insists that it was not proper because (1) there was no valid election under Maryland Rule 343; (2) a jury is not proper in a suit of equity; and (3) CMI should not have been permitted to press before the jury a claim for breach of fiduciary relationship which it expressly abandoned in order to obtain a jury trial. (1) On the day the declaration instituting the action was filed by Impala the sheriff was commanded by the court to summon Sales to the Circuit Court for Cecil County on the first Monday of March next, i.e., 3 March, to answer the action.

The summons informed Sales that it had fifteen days from the day named to answer or make its defense. The sheriffs return showed “Exit Summons by Certified Mail, Return Receipt Requested, Deliver to Addressee Only, 2/7/75.” The declaration included a prayer for the issuance of a writ of attachment on original process and an affidavit in support thereof. The court ordered the issuance of the writ the same day. Maryland Code (1974, 1977 Cum.

Supp.) §§ 3-301 to 3-305, inclusive, of the Courts and Judicial Proceedings Article; Maryland Rule, Chapter 1100, Subtitle G. Impala instructed the sheriff to serve the writ on CMI. CMI filed three sets of documents in the Circuit Court for Cecil County, each set stamped by the clerk as received for record and recorded on 13 February 1975 at 3:57 p.m. In the order in which they were entered on the docket, the first was ³¹¹ entitled “ANSWER OF GARNISHEE TO ATTACHMENT.” It asserted that Sales was never indebted as alleged and never promised as alleged and that CMI was not indebted to Sales. It set out other defenses on behalf of Sales and CMI going to the claim of Impala and the prayer for the writ of attachment.

It included a certificate of notice that a copy had been mailed to Impala’s counsel on 13 February. Attached as exhibits A and B were copies of the Supply Contracts. The second set was entitled “PETITION OF COLONIAL METALS, INC. TO INTERVENE AS PARTY DEFENDANT AND COUNTER-CLAIMANT.” CMI prayed that the petition for leave to intervene as a party defendant be granted “with leave to plead the attached counterclaim.” It included a certificate of notice that a copy of the petition had been mailed to Impala’s counsel on 13 February 1975.

There were two attachments and various exhibits. The second attachment was an unsigned copy of a counterclaim of CMI against Impala and an unsigned copy of an election by CMI for a jury trial. The third set was the original of the counterclaim of CMI. It was entitled “COUNTER CLAIM OF DEFENDANT, COLONIAL METALS, INC., FOR DAMAGES, DECLARATORY JUDGMENT, INJUNCTION AND OTHER RELIEF AGAINST PLAINTIFF, IMPALA PLATINUM, LIMITED.” It claimed breaches of contract and fiduciary relationship by Impala.

It sought (a) a declaratory judgment construing certain paragraphs of the agreement of 3 October 1972; (b) a declaratory judgment that Impala was in breach of that agreement and its fiduciary relationship with CMI; (c) an award of damages against Impala; (d) an accounting of monies received by Impala in violation of the agreement; (e) a declaration that Impala was constructive trustee for the benefit of CMI of all profits received by Impala for sales of its product in the United States in violation of the agreement; (f) a permanent injunction prohibiting Impala from further attempts to deny or refuse a source of supply of Impala’s metals; (g) a permanent injunction prohibiting Impala from further sales of platinum in the United States in violation of the agreement; and (h) such other and further relief as justice may require. By a separate document entitled ³¹² “ELECTION FOR JURY TRIAL/’ CMI elected “to have the factual issues in this Suit tried by a Jury of twelve men and women.” There were the same exhibits attached as accompanied the motion to intervene. There was also, on a separate page, a “CERTIFICATE OF NOTICE” certifying that a copy of the counterclaim was mailed to Impala’s counsel on 14 February 1975. There is in the record an undated letter to the clerk of the court from Sales’, counsel reading: “Kindly attach the enclosed Certificate of notice to the counterclaim filed in the above referenced case by Defendant, Colonial Metals, Inc.” This letter does not bear a stamp indicating when it was received by the clerk.

There is also in the record, apparently with respect to the counterclaim, an “Affidavit of Compliance” indicating that a copy of the summons together with the original pleadings had been mailed to Impala on 10 February 1975. Attached is a United States Postal Service return receipt addressed to the clerk showing that the addressee had received the documents. The return receipt bore a stamp reflecting that it had been received by the clerk for record and recorded on 18 February 1975 at 11:15 a.m. Maryland Rule 343 deals with the election of a jury trial.

Section f 1 designates exceptions “generally” to the Rule: “This rule shall not apply to issues from the Orphans’ Court, to any proceedings under writs of attachment, or execution, or scire facias, or to any appeals with respect to which the procedure governing the exercise of the right to a jury trial, if any, is established by statute.” 5 Impala points out that Sales never prayed a jury trial, and claims that CMI failed to make an election for jury trial in accordance with the provisions of the Rule so that the right to a jury trial was waived. Sales and CMI urge that the “writ of attachment, or execution, or scire facial’ exceptions of § f 1 dispose of Impala’s argument. We do not agree. Clearly there was no proceeding under execution or scire facias.

As ³¹³ for the writ of attachment, the short answer is that the attachment case was never tried. One of the few matters in this litigation in which the parties are not at odds is that it was agreed that the attachment case not be tried; only the claim and counterclaim went before the jury. 6 A proceeding under a writ of attachment was not involved in the trial. 7 We hold that the election of a jury trial was governed by Rule 343. Section a of Rule 343 concerns the requirement of an election of jury trial and the form of request: “An action at law shall be tried before the court without a jury unless an election be made, in person or by attorney, for a jury as hereinafter provided. Such election shall be in writing separate and distinct from the body of the pleadings but may be included at the end of any pleading with an appropriate heading, and, where a certificate of service is required, immediately preceding same.” Sections b and c mandate the time for election, § b by a plaintiff and § c by a defendant.

Section b reads: “A plaintiff shall make such election at the time of filing of the original declaration. In all cases where a new plaintiff, other than a successor in interest of an original plaintiff, shall become a party such new plaintiff shall make the election within fifteen days after becoming a party.” ³¹⁴ Section c reads: “A defendant, including a third party, shall make such election at or before the time for filing his first responsive pleading to the merits, which places the case at issue as to him.” As we have indicated, Impala instructed the sheriff to serve the writ of attachment on CMI. It is manifest that this was done on or before 13 February 1975, as on that date CMI, as garnishee, answered the attachment. We think that CMI became a party to the action when it was served with the writ of attachment and that its status as a party was that of a defendant.

See Rule 5 j. Over three-quarters of a century ago in Albert v. Albert, 78 Md. 338 , 28 A. 388 (1894) our predecessors found it to be “well settled” that “a garnishee stands, in all respects, in a situation exactly similar to that of a defendant debtor. He may contest the claim made against him, but if he does so he is liable to costs. He may not only defend his own interest as a mere neutral in the controversy between the plaintiff and the defendant, but he may assume the character of an ally of the defendant.

He is allowed to plead and defend his rights, for him and in his behalf.” Id. at 346 . Rule G 52 a fully recognizes the teaching of Albert in providing that “[t]he garnishee may file a pleading asserting on behalf of the defendant any defense which the defendant could assert, and also any defense on his own behalf.” Even if CMI did not so attain the status of party defendant in the case, it had the right, upon timely application, which it made, to intervene in the action. Rule 208 a and c 1. It became a party defendant beyond question upon the order of the trial court granting it leave to intervene and designating it as a defendant.

Rule 208 c 2; Elliott v. Larrimore, 203 Md. 526, 530 , 101 A. 2d 817 (1954). Since CMI was a defendant subject in regard to the election of jury trial to Rule 343, the question is whether there was ³¹⁵ compliance with the relevant provisions of that Rule. CMI clearly made an election for a jury trial in a writing separate and distinct from the body of the pleadings as required by § a. The issue is whether the election was made “at or before the time for filing [its] first responsive pleading to the merits, which place[d] the case at issue as to [it],” as prescribed by § c.

This entails two initial determinations: (a) what was the first responsive pleading to the merits which placed the case at issue as to CMI; and (b) what is meant by “at or before the time for filing” that pleading. (a) We find that the first responsive pleading to the merits which placed the case at issue as to CMI was that entitled “ANSWER OF GARNISHEE TO ATTACHMENT.” Despite its title, it was this pleading, and no other, which pleaded the common counts and asserted other defenses to the claim of Impala on behalf of both Sales and CMI. Thus, it responded to the merits of Impala’s claim and placed the case at issue as to the defendants. The counterclaim filed by CMI, on the other hand, was no more than what it purported to be, a claim CMI alleged it had against the opposing party, Impala.

See Rule 314 a 1. It cannot in any way be construed as a responsive pleading to the merits which placed the case at issue as to CMI. (b) The history of Rule 343 is traced in 3 Poe’s Pleading and Practice § 249 (Sachs 6th ed. 1975). Section 39 of Article IV of the Constitution of Maryland was adopted by Acts 1892, ch. 318, ratified 7 November 1893.

It provided, inter alia, that the Supreme Bench of Baltimore City could require, by rule, causes in the courts of Baltimore City to be tried by the court without a jury, unless a litigant, within such time as may be prescribed, elected to have the cause tried before a jury. The Supreme Bench of Baltimore City, apparently pursuant to this constitutional authority, adopted its Rule 50, later Rule 545. It included provisions for the time of election by a ³¹⁶ plaintiff and by a defendant. As quoted in Baltimore City v. Thomas, 115 Md. 212, 214 , 80 A. 726 (1911), it read: “ ‘As to plaintiffs, such election shall be made by the plaintiffs, or any of them, not later than fifteen days after the filing of the declaration.

In all cases where a plaintiff or plaintiffs shall be brought in by amendment, any such new plaintiff shall so elect within five days after being made a party. “ ‘As to defendants, such election shall be made by the defendants, or any of them, at or before the time of first filing a plea, but in no event after the time allowed by law to plead____’ ” See Houston v. Lloyd’s, 241 Md. 10, 18 , 215 A. 2d 192 (1965). Baltimore County adopted a rule “very likely ... copied, almost verbatim, from the city rule____”, Houston at 18 , but without constitutional provision therefor. We upheld the constitutionality of the rule on the rationale that constitutional authority was not required because there was no deprivation of a jury trial required by the Constitution but merely the requirement to make a timely election which made for a more orderly progress of a case in the courts. Id. at 11-24 . 8 It was following the decision in Houston that we adopted Rule 343 pursuant to the 34th Report of the Standing Committee on Rules of Practice and Procedure, effective 1 April 1969.

See Elmore v. Reese, 268 Md. 490, 493 , 303 A. 2d 381 (1973); Md. Community Dev. Inc. v. S. R. C, 261 Md. 205, 211 , 274 A. 2d 641 , appeal dismissed, 404 U. S. 803 , 92 S. Ct. 62 (1971). According to Poe, supra, § 249, Rule 343 was patterned after the earlier Supreme Bench of Baltimore City rule. We construed the time of election requirements of the Supreme Bench rule in Thomas, supra, in holding that a demurrer was not a “plea” within the contemplation of the rule.

We said: “The rule seems to us to clearly mean, that if a defendant desires to elect a jury trial, he must do so ³¹⁷ when he first files a plea, even if that plea is filed before the regular rule day, and he must at all events make such election by the time he is allowed by law to file his plea.” Id. at 216 . For other discussions of the rule see Condon v. Gore, 89 Md. 230 , 42 A. 900 (1899); City Pass. Ry. Co. v. Nugent, 86 Md. 349 , 38 A. 779 (1897).

Although Rule 343 may have been patterned after the earlier Supreme Bench rule which we construed in Thomas , there are significant differences in the two rules in the wording of the provisions regarding the time for election by a defendant. The Supreme Bench rule required that such election be made “at or before the time of first filing a plea, bat in no event after the time allowed by law to plead----” (Emphasis added). Our construction in Thomas is entirely .consistent with this wording. Rule 343, however, provides that a defendant shall make such election “at or before the time for filing his first responsive pleading to the merits, which places the case at issue as to him.” This, we believe, does not mean that the election must be made at the time of filing such first responsive pleading.

The clear import of the language, we think, is that, although it may be made simultaneously with such first responsive pleading, it need not be. It may also be made at any time during the period allowed for the filing of such responsive plea. Thus, the election may be made at or after the filing of the plea, provided it is within the time for filing the plea. Our view is supported by the obvious distinction between the time for election required of a plaintiff vis-á-vis a defendant.

A plaintiff must elect at the time of filing his original declaration; a defendant must elect at or before the time for filing his plea. Had we meant for the defendant to elect at the time of filing his plea, it would have been easy for us to so state. Our view is also supported by the comparable Maryland District Court Rule. MDR 343 b requires, similar to 'Maryland Rule 843 b, that a plaintiff file ³¹⁸ an election “with his statement of claim____” MDR 343 c, on the other hand, permits the election to be made by a defendant “within the time prescribed for filing [notice of intention to defend].” The election need not be made with or at the time the notice to defend is filed.

Our interpretation of Maryland Rule 343 c makes consistent the time for election of jury trial by a defendant, as well as by a plaintiff, in both the circuit courts and the Maryland district courts. Bettum v. Mont. Fed. S. & L. Ass’n, 262 Md. 360 , 277 A. 2d 600 (1971) does not compel a contrary view. We indicated in Bettum that a local rule of court requiring that an affirmative written election for a jury trial be made at the time of filing of the first pleading had been made applicable to all courts by Rule 343.

Id. at 366 . But we were there speaking in terms of a plaintiff, and what we said was correct in that context. Nor are Bringe v. Collins, 274 Md. 338 , 335 A. 2d 670 (1975) and Fallon v. Agency Rent-A-Car, 268 Md.