
    No. 112
    No. 19057
    S. J. Kornhauser, Receiver of The Ohio Export-Trading Company v. The National Surety Company.
    Error to the Court of Appeals of Cuyahoga County.
    1139. SURETY COMPANIES.l Bonding Company contracting to indemnify employer for dishonesty of employee who actually performs duties of certain positions named in schedule, liable even though such employee was not elected to the position in suestion.
    2. Condition precedent that employer notify Company after becoming aware of dishonesty must be complied with or bonding company is not liable even though loss has ensued to employer.
   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.  