
    Smith v. Josselyn.
    1. S. had knowledge that his agent, by culpable carelessness, had lost money collected by him in the discharge of his duties, and for that reason required that he should either give bond to pay over all moneys hereafter received or collected by him, or quit his employment. S. did not inform the sureties of his agent’s former culpable carelessness and they had no knowledge thereof. — Held: That the principal can not avail himself of the guaranty thus obtained.
    2. After evidence had been given tending to establish the state of facts set out in the preceding paragraph, it was error for the judge to instruct the jury that it was their duty to return a verdict for S.
    Error to the District Court of Richland County.
    Sylvester Smith was the agent of the B. & O. R. R. Co., at Mansfield, Ohio. E. N. Josselyn had charge of the town freight-house of the railroad company, and received and collected large sums of money for freights. He was appointed by Smith, and S. was responsible to the company for his acts. On the 15th of October, 1878, Josselyn, with W. S. Carroll and John Hoover as sureties, gave a .bond to Smith in the sum of three thousand dollars, conditioned that Josselyn should well and truly pay over to Smith all moneys collected or coming into his hands, belonging to the B. & O. R. R. Co. August 18th, 1877, Smith commenced an action upon this bond against Josselyn as principal, and Carroll and Hoover as sureties, seeking to recover $1,238.23 said to have been wrongfully withheld by Josselyn and belonging to the railroad company.
    As one of their defenses, the sureties alleged that prior to the 15th of October, 1873, Josselyn had sustained the same relations to Smith and the railroad company that he did afterwards. That in such employment Josselyn had collected money, but that he had held and managed the same- so carelessly, negligently and with such want of skill that he had lost the same, and that there was, on the 15th of October, 1873, a deficiency in Josselyn’s accounts and a failure by him to pay over the money received by him. It was claimed that Smith had full knowledge of these things, that on account of them he required a bond from Josselyn; that the sureties had no knowledge of them, and that Smith did not inform the sureties of his agent’s former culpable carelessness.
    The result of the action in the court of common pleas was a verdict and judgment for the plaintiff. This judgment was reversed by the district court.
    
      Jenner Tracy, for plaintiff in error,
    cited 14.Wall., 448; ‘22 Id'., 116,122; 97 U. S., 319; 24 Ohio St., 83; 35 Id., 194.
    
      Firlqm Leyman, for. defendants in error.
    
      Jarengon v. Fleming, 43 Miss., 710; Kerr on Fraud, 123 ; Finsmore v. Tidball, 34 Ohio St., 411.
   Nash, J.

One of the reasons for which the district court .reversed'the judgment of. the. court below, was the action of that court in ■ directing a verdict for the plaintiff. This was - done after the defendants: — the sureties — had offered some evidence tending to show that their principal, without their knowledge,-had been guilty of culpable carelessness while in the employment of the plaintiff, and before the giving of the- bond sued upon by .him; that the plaintiff, Smith, had knowledge of this carelessness when he required Josselyn to give a bond or leave his service, and that this fact he, Smith, withheld from the. sureties. These were matters of-fact which the jury, should have-been left to determine. If once established, they- made a good defense for the sureties. Dinsmore, Trustee, v. Tidball et al., 34 Ohio St., 311.

We therefore agree with the district court in reversing the judgment of the common pleas, and as this error necessitates a reversal, we have not considered other alleged errors.

. Judgment. affirmed.  