Kornhauser v. National Surety Co. , 4 Ohio Law. Abs. 90 ( 1926 )

ALLEN, J.

1. One who has exclusive possession and control of a position in a private corporation occupies such position.

2. A bonding company which agrees to indemnify an employer against the fraud or dishonesty on the part of an employe while occupying and performing the duties of any position named in the schedule forming part of the bond, is liable to reimburse the employer for loss incurred through the fraud and dishonesty _ of employes actually occupying and performing the duties of certain positions named in the schedule, even though the said employes were not elected to the position in question.

3. A contract between an employer and a bonding company provides that the employer shall, within a given time after becoming aware of any evidence of dishonesty of any employe, give notice_ thereof to the surety. This provision constitutes a (Condition precedent, and when the employer fails to comply therewith he cannot_ recover even though the defalcation described in the bond by employes covered by the bond, has taken place and loss has ensued.

Judgment aifirmed.

Marshall, CJ., Day, Kinkade, and Robinson, JJ., concur. Jones and Matthias, JJ., concur in proposition three of the syllabus and in the judgment.