Lynn v. City of Cumberland
| Decision Date | 20 June 1893 |
| Parties | LYNN ET AL. v. MAYOR, ETC., OF CITY OF CUMBERLAND. |
| Court | Maryland Court of Appeals |
Appeal from circuit court, Allegany county.
Action by the mayor and city council of Cumberland against David Lynn, James A. Millholland, and others, on the bond given by David Lynn as tax collector. Judgment for plaintiff, and defendants appeal. Affirmed.
Argued before ROBINSON, C.J., and PAGE, FOWLER, BOYD, ROBERTS McSHERRY, BRISCOE, and BRYAN, JJ.
Ferd. Williams, J. W. Thomas, and William E. Walsh, for appellants.
W. S Bridendolph and A. Hunter Boyd, for appellee.
This is a suit upon the official bond of the tax collector of the city of Cumberland. The facts which give rise to the principal question involved are these: On the 7th day of June, 1886, David Lynn was elected by the city council of Cumberland collector of the municipal taxes and water rents payable for the fiscal year 1886-87. By an ordinance passed under the authority conferred by the charter the city tax collector was required to be elected annually on the first Monday of June, and it was provided that he should "hold his office for one year, or until his successor is duly elected and qualified, unless sooner removed by death resignation, or other lawful cause." After his election he gave bond, with James A. Millholland, William Walsh, and R. D. Johnson as sureties. The condition of the bond is in these words: "The condition of the above obligation is such * * * if the said David Lynn, during his continuance in said office, shall in all things diligently and faithfully discharge the duties of said office, and shall well and truly account for and pay over, agreeable to the said charter of said city of Cumberland, and the ordinances passed in pursuance thereof, all moneys which he shall receive for or on account of the said corporation known as the mayor and city council of Cumberland, and shall collect and pay over to the city treasurer of said city at least twenty-five per centum of the levy placed in his hands quarterly, dating from the date of said levy, and shall collect and account for all water rents due said city and placed in his hands for collection, then this obligation to be void," etc. Upon being furnished with the lists of taxpayers and water renters and a warrant in due form, he proceeded to make collections. On the first Monday of June, 1887, he was again elected collector, but failed to give new bond and to take the oath of office. Notwithstanding this failure to qualify, the tax books and water rent books for the fiscal year 1887-88 went into his possession, with a warrant sealed with the corporate seal, but not signed by the mayor, annexed thereto; and he made collections of part of the taxes and water rents for that year. Failing to pay over all the moneys received by him for the two fiscal years 1886-87 and 1887-88, the bond given when he was first elected in June, 1886, was put in suit. Two of the counts of the narr. were demurred to, and, upon the demurrer being overruled, numerous pleas were filed, some of which were traversed and others of which were demurred to. Particular reference to them is not necessary, though two of them will be adverted to later on. The issues ultimately evolved raised the question of the liability of the sureties for the defaults of the collector, Lynn, during the second fiscal year for which he had been elected; and this liability embraced defaults in not collecting and default in not paying over the sums actually collected. As the city abandoned in the court below and in this court its claim to recover against the sureties for mere failures to collect what ought to have been collected during the second fiscal year, we need not enter upon a discussion of the counts of the narr. relating to that question. The other ground of recovery--the alleged liability of the sureties for the neglect of Lynn to pay over all the money collected by him during the second fiscal year--is the controlling question in the case.
As a surety's liability is, in all cases, founded exclusively upon contract, and cannot in any instance be extended beyond the strict import of the obligation which he has expressly assumed, his responsibility to the city of Cumberland for the default of his principal in not paying over taxes and water rents acually collected by him for the fiscal year 1887-88 must be found in the bond executed and delivered in June 1886, and in the charter and ordinances therein referred to. By the terms of the ordinance relating to the election of the city collector, and by the recitals in the bond sued on, the duration of Lynn's office was one year, and until his successor was duly elected and qualified. It was not limited merely to the year beginning in June, 1886, and ending in June, 1887, but was distinctly extended beyond the latter date, and included the period intervening between that time and the election and qualification of a successor. Lynn was rightfully an incumbent of the office so long as his official term continued, and his official term continued until terminated by the election and qualification of his successor. In June, 1886, his sureties bound themselves that "during his continuance in said office"--that is to say, during the fiscal year 1886-87, and until his successor should be elected and should qualify--he would "well and truly account for and pay over * * * all moneys which he shall receive for or on account of said corporation;" and that he would "collect and account for all water rents due said city and placed in his hands for collection." By this obligation they fixed upon themselves a liability to the city if, during Lynn's continuance in office,--hence until the election and qualification of his successor,--he failed to account for and to pay over the moneys received by him as collector for or on account of the corporation; and that liability is, according to the plain letter of the bond, coextensive with the duration of his official term. Now, he was re-elected in June, 1887, but failed to qualify, for he neither took the oath of office nor gave a new bond. He therefore continued in the office of collector under his first election, and, as the express terms of the contract of the sureties bound them to indemnify the city against his defaults while he remained rightfully collector, the bond covers his failure to pay over to the corporation all the taxes and water rents (less his commissions) which he actually received for the second fiscal year; and the sureties are clearly liable for his omission to do so. This conclusion is fully supported by the recent case of Archer v. State, 74 Md. 427, 22 A. 6, 737. But it was vigorously contended in the argument that the case at bar is distinguishable from Archer's Case, and it was earnestly insisted that the principle announced in that decision applies only where the duties of the office are continuous, and not where the appointment involves merely the performance of a particular, specific function, the performance of which exhausts the whole purpose for which the appointment was originally made. Many cases were cited and relied on in support of this distinction, but, without pausing to review them, it is obvious that the question now before us does not fall within the reasons underlying those cases. When the contract of the surety guaranties only the performance of a specific act or the performance of particular duties within fixed and defined limits of time, the nonperformance of some other act or the nonperformance of similar duties at some other and different time can fasten no liability on the surety, because these defaults would be outside of his undertaking. But for breaches of the condition of the bond committed by the principal while lawfully in office the surety, if the bond covers the whole official term, is clearly liable. The Maryland cases, from Thomas v. Owens, 4 Md. 221, to Robb v. Carter, 65 Md. 321, 4 A. 282, and Archer's Case, 74 Md. 427, 22 A. 6, 737, uniformly hold that even where an officer has been appointed for a definite term he is entitled to hold after the expiration thereof until his successor is elected and qualifies, the superadded period being in fact a part of his rightful term of office. This being decisively settled, and the surety being liable for a breach of the bond during the principal's lawful term unless the bond expressly restricts that liability to a definitive portion of such term, it necessarily follows that the liability of the surety extends to the superadded as well as to the preceding portion of the term. The law fixes the duration of the term to be until the election and the qualification of a successor, and this the bond reiterates, and...
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