State v. Hill

• Decision Date: 29 June 1898
• Citation: 41 A. 61,88 Md. 111
• Parties: STATE v. HILL et al.
• Court: Maryland Court of Appeals

41 A. 61

88 Md. 111

STATE v. HILL et al.

Court of Appeals of Maryland

June 29, 1898

Appeal from Baltimore city court.

Action by the state, for the use of the board of the county school commissioners of Howard county, against John E. Hill and another. Judgment for defendants, and plaintiff appeals. Affirmed.

Argued before MCSHERRY, C.J., and BRYAN, FOWLER, BRISCOE, BOYD PAGE, and PEARCE, JJ.

John J Donaldson and Jos. D. McGuire, for appellant. Edgar H. Gans Thos. A. Whelan, and N. Winslow Williams, for appellees.

PEARCE J.

This is an action for debt, for the use of the board of county school commissioners of Howard county, upon the official bond of John E. Hill as secretary and treasurer of such board; the Fidelity & Deposit Company of Maryland being his surety upon said bond, and the suit being brought to recover the amount of certain payments made by him during his term of office, and clamed by the appellants to have been made without warrant of law, and in violation of the condition of his bond. The appellees claim, not only that all these payments were ordered by the board of school commissioners, but that they were authorized by law, and further that, even if not warranted by law, the defendants are not liable upon a proper construction of the language of the bond, for any payments made by Hill on the order of the board; and the agreed statement of facts upon which the case was tried below shows that each of these payments now sought to be recovered was made upon the formal, recorded order of the board of county school commissioners of Howard county. If the payments thus made do not constitute a breach of the condition of the bond, there can, of course, be no recovery upon the bond in respect to said payments, and we proceed at once to consider this question.

The material part of the condition of the bond is as follows: "that if the above-bound John E. Hill shall faithfully perform the duties of secretary and treasurer of the board of county school commissioners of Howard county, and shall pay over and apply all moneys that shall come to his hands or care as treasurer to such persons and in such manner as said board of county school commissioners shall direct, *** then the above obligation to be void." Article 77, § 67, of the Code of Public General Laws of Maryland, requires the secretary and treasurer to give bond to the state of Maryland, with surety to be approved by the board, and in such penalty as it shall determine, with condition "that he will faithfully perform the duties of secretary and treasurer, pay over and apply all moneys that shall come to his hands or care as treasurer, to such persons and in such manner as said board may, under the provisions of this article, direct." It will thus be seen that, in the condition of the bond given, the words of the statute, "under the provisions of this article," are omitted. It appears from the agreed statement of facts that Hill offered to give to the board a bond with private persons as sureties, to be satisfactory to the board, but that the board, deeming it best for the interests of the school fund, required a bond in a regular surety company, and that thereupon the bond now sued on was given and approved; and it further appears from said statement that the words, "under the provisions of this article," were deliberately omitted from the condition of the bond by the surety company, for the express purpose of preventing any liability attaching to it by reason of any mistake made by the board itself in ordering the payment of any moneys by Hill, and that the surety would not have entered into any bond, the effect of which would be to guaranty the legal correctness of the orders of the board, in addition to the honesty and integrity of said Hill, his faithful performance of duty, and a strict compliance with the orders of his superiors. In Archer v. State, 74 Md. 450, 22 A. 8, Archer, being then state treasurer, and duly qualified as such, was on January 13, 1888, appointed by the legislature his own successor; and on January 27th he executed a new bond, with security, but neglected further to qualify under that appointment until November 18, 1889, when he took the prescribed oath, and the governor approved his bond. In a suit by the state on this bond it was held no action could be maintained thereon, and this court said: "It is familiar law that the contract of a surety upon an official bond is subject to the strictest interpretation. 'They undertake,' in the language of Judge Cooley, 'for nothing which is not within the strict letter of their contract. The obligation is strictissimi juris, and nothing is to be taken by construction against the obligors. They have consented to be bound to a certain extent only, and their liability must be found within the terms of that consent.' *** The bond recites that he was duly appointed treasurer January 13, 1888, pursuant to the constitution of the state, and is conditioned for the faithful discharge of all the duties required of him by the constitution and laws in all things pertaining to his office under that appointment. That is the contract into which the sureties entered. *** It would be doing violence to its terms, if the contract could be read as making the sureties responsible for the discharge of any duties save those that became incumbent on him by that appointment and a due qualification thereunder." The above citation will serve to show with what strictness this court protects sureties against mere constructive liability. In the case at bar the breach alleged is that the payments claimed were made without authority of law, while the condition of the bond, the breach of which is alleged, is that all payments should be made to such persons and in such manner as the board should direct. Tested by the plain and unequivocal language of this condition, Hill has fulfilled the letter of his contract, and it was to that extent only that the surety consented to be bound. Beyond that it can only be bound by construction, and this court has said, "Nothing can be taken by construction against sureties." It would seem, where the language of a contract is thus plain, and the utterance of this court just quoted is so emphatic, that we might rest upon it without hesitation; but the appellants have so earnestly and ably argued the authorities upon which they rely that we think it proper to give them full and respectful consideration.

Their first contention is that a substantial compliance with the form required by the statute is all that is needful, but we do not find any of the cases cited upon this point to be satisfactory authority, as applicable to this case. In Hamilton v. State, 3 Har. & J. 503, the bond of an administrator was not in the words of the form prescribed by the act of 1798, but an express part of the condition of the bond was that he should faithfully pay all just claims against the deceased. The breach assigned was nonpayment of a claim duly proved for medicine and attendance on the deceased, and, on demurrer, plaintiff was allowed to recover,--the nonpayment being a clear breach of the particular express condition,--notwithstanding some informality in the bond in other respects. In Waters' Representatives v. Riley's Adm'r, 2 Har. & G. 305, the suit was upon the bond of an administrator de bonis non, but the words "not already administered" were omitted from the condition of the bond; and the sureties were held not liable for a misapplication of the assets not theretofore administered, as to which no duty was imposed by the language of the condition of the bond. Judge Archer, in a dissenting opinion, said that where a bond is so drawn as to include every obligation imposed by the statute, and to afford every defense allowed by it, a slight variance from...