Ann Arbor v. Bonding Ins. Co. , 282 Mich. 378 ( 1937 )

Defendant was surety on the official bond of Theodore Schmidt, city treasurer of Ann Arbor, for the year from May 3, 1927, to May 3, 1928. Schmidt died May 1, 1928. This suit was instituted by the plaintiff city against the surety to recover taxes alleged to have been uncollected by Schmidt. From judgment for defendant, plaintiff appeals.

The trial court held "that where death intervenes during a term of office of one charged with the duty of collecting taxes, he cannot be charged with nonfeasance, because he did not have the full period of his term within which to discharge his duty. This seems to be held in Montgomery v. Governor, 8 Howard (Miss.), 68, where the bondsman offered to show that the county treasurer died during his term."

There is no question the treasurer made his return in March and received a warrant authorizing him to collect the unpaid taxes. 1 Comp. Laws 1929, § 3447, provides:

"The county treasurer shall give the township or city treasurer a statement of all the personal taxes which remain uncollected, taken from the return of the latter, with a warrant authorizing him or his successor to collect them according to law, and thereafter such treasurer or his successor shall have the same power to collect such taxes as under the original warrant."

The undertaking of a surety is to receive a strict interpretation. The surety has a right to stand on the very terms of the contract. To the extent and in the manner and under the circumstances pointed out in his obligation, the surety is bound, and no further. The liability of the surety is not to be extended by implication beyond the terms of his contract. Miller v. Stewart, 9 Wheat. (22 U.S.) 680. A surety cannot be held beyond the precise terms of his agreement. Walsh v. Bailie, 10 Johns. (N. Y.) 180. As said by Chancellor Kent, "The claim against a surety is strictissimi juris." 3 Kent's Commentaries (14th Ed.), p. 217. See, also, Fellows v.Prentiss, 3 Denio (N.Y.), 512 (45 Am. Dec. 484).

There is no question the death of the principal terminates the liability of the surety and the surety cannot be held liable for any defaults which may have occurred after the death of the principal. 50 C. J. p. 96.

The principal in this case had the full time fixed by his term of office within which to collect the delinquent taxes covered by his warrant. The surety's liability terminated at his death, and it could not be charged with any liability which had not accrued prior thereto. It is entirely immaterial what the length of time may have been between the death of Schmidt and the expiration of his term of office. The length of time makes no kind of difference. Wilson v. Lloyd, L. R. 16 Eq. 60 (42 L. J. Ch. 559, 28 L. T. 331, 21 W. R. 507); Smith v.Shelden, 35 Mich. 42 (24 Am. Rep. 529). The liability of the principal did not accrue during his lifetime. He was entitled to the benefit of his full term within which to carry out the terms and conditions of the warrant in his hands. Had he lived, he might have caused a levy to be made under and by virtue of the terms of the warrant in his hands, under which a sale could subsequently be made, and he cannot be held guilty of nonfeasance because death deprived him of part of the time allotted to him by law for the performance of his duty.

Judgment of the trial court affirmed, with costs.

BUTZEL, BUSHNELL, and CHANDLER, JJ., concurred with POTTER, J.