Detroit Sav. Bank v. Zeigler

• Decision Date: 11 October 1882
• Citation: 49 Mich. 157,13 N.W. 496
• Court: Michigan Supreme Court
• Parties: DETROIT SAVINGS BANK v. ZEIGLER.

13 N.W. 496

49 Mich. 157

DETROIT SAVINGS BANK v. ZEIGLER.

Supreme Court of Michigan

October 11, 1882

Where debt would lie at common law assumpsit may be maintained under Comp.Laws, � 6194, upon a contract under seal, such as the official bond of a bank teller, even though it be a penal bond without covenants.

The obligation of an official bond is strictissimi juris and nothing can be taken by construction against the obligors the sureties do not undertake for anything beyond the letter of their contract and are only liable within its terms.

A bank teller's official bond covers any duties to which in the natural course of the business of the bank he may be assigned by the cashier or other proper officer in the temporary absence of the person whose duty it would be to perform them. So held where the receiving teller in the savings department was assigned in the temporary absence of the general teller to do his work in a bank in which the money was kept in a common fund.

Error to superior court of Detroit.

John H Bissell and Otto Kirchner, for appellant.

John D Coneley, for appellees.

COOLEY, J.

This suit is upon a bond, given by defendant, Herman H. Zeigler as principal, etc., the other defendants as sureties, to secure to the plaintiff the faithful performance of Zeigler's duties as teller. The bond is dated February 10, 1877. The penalty named is $5,000, and the condition is as follows: "The condition of this obligation is such, that whereas the above-bounden Herman H. Zeigler has been appointed receiving teller savings department, and by the terms of the by-laws of said bank, is made responsible for all such sums of money, property and funds of every description, as may from time to time be placed in his hands by the cashier, or otherwise come into his possession as receiving teller: Now, therefore, the condition of the foregoing obligation is such that if the said Herman H. Zeigler shall faithfully and honestly discharge the duties of his said office, and shall faithfully apply and account for all such moneys, funds and valuables, and shall deliver the same, on proper demand, to the board of directors of said bank, or to the person or persons authorized to receive the same, then the foregoing obligation shall be void, otherwise to remain in full force and value."

At the time when this bond was given and Herman Zeigler entered upon the performance of his duties, his brother Charles Zeigler was the general teller of the bank. As such he had charge of commercial deposits and payments, and he was also the superior of Herman Zeigler, whose duty it was to account to him at the close of each business day for the money received in the savings department for that day. It seems to have been customary in the bank, if for any reason the general teller was temporarily absent, for the receiving teller of the savings department to take his place while the absence continued, and the cashier of the bank testified that he directed this, and understood it to be the duty of the receiving teller of the savings department to comply with the direction. Such temporary absences occurred while Herman Zeigler was such receiving teller, and he took his brother's place while they continued. The case shows that of the moneys which came to his hands while thus temporarily acting for his brother, he embezzled a sum larger than the penalty of his bond. His brother was privy to the embezzlement.

1. This suit is in assumpsit; and it is objected that assumpsit will not lie That a common law the action have been debt, is conceded; but the statute provides that "in all cases arising upon contracts under seal, or upon judgments, when an action of covenant or debt may be maintained, an action of assumpsit may be brought and maintained in the same manner in all respects as upon contracts without seal." Comp.Laws, � 6194. Counsel for the defense make an ingenious argument to convince us that this statute is not applicable to a penal bond without covenants. We do not agree in this. We think the intent of the statute is made plain in its words: to permit the action of assumpsit to be brought "in all cases" where before an action of debt might be brought on a contract under seal. This is such a contract and such a case.

2. The second objection to a recovery is more specious, and goes to the merits. It is that there has been no breach of the bond. The moneys for which Herman Zeigler failed to account did not, it is said, come to his hands as receiving teller of the savings department of the bank, or in the performance of his duties as such; but they came to his hands while he was temporarily performing the duties of another office. But this bond is not conditioned that he shall faithfully perform the duties of any other office, or account for moneys that might come to his hands by virtue of any other trust; and his sureties cannot be supposed to have contemplated when they undertook to be responsible for his conduct as receiving teller of the savings department, that they were making themselves responsible for his conduct in some other position, to which he might be assigned, and of which the duties might be different and the responsibilities greater. This, in short, is the argument for the defense.

Abstractly considered, this argument is undeniable. The sureties...