
    Dangler v. Baker.
    Four persons, including the defendant, agreed to execute a bond to the-plaintiff. One of the persons who was to execute the bond, procured by-fraud, a bond to be executed and delivered by the defendant, in which the names of two of the persons who were to join in the execution were-omitted: Meld, 1. That the fraud constitutes no defense to a suit on the bond, where the plaintiff had no notice of the fraud at the time he accepted the same and parted with the property in consideration of which the bond was given. 2. That the plaintiff might have required the bond to be executed by all the parties, but he was not bound to do so. He-might waive his right to require the bond to be thus executed by all the parties; and the fact that the bond presented to the plaintiff and accepted by him, was the bond of two of the parties only, is no evidence to charge him with notice of the fraud practiced in its procurement.
    Error to the District Court of Cuyahoga county.
    Tbis cause was commenced in the Superior Court of Cleveland by Q-eo. A. Baker against Calvin Carr and .David A. Dangler, upon a bond conditioned in the penal •sum of $20,000, alleged to have been executed and delivered by said defendants to said plaintiff on tire 20th of August, 1867.
    The plaintiff avers in his petition that the conditions uf the bond had been broken, whereby Carr and Dangler had bécome indebted to him in the sum of $2,440.25.
    The defendants file separate answers. Dangler sets up two distinct defenses; in his. first defense he admits that he signed the bond, but denies that he delivered it or authorized its delivery; alleges that he signed the 'bond with the express agreement and understanding with the plaintiff that it should also be signed by Leverett Tarbell and 8. U. Tarbell, and avers “ that the plaintiff— Baker — has no right to the possession of said instrument of writing, the same not having been executed by said Tarbells before delivery, as it was expressly agreed, and .understood, as before specified, it should have been exe■cuted.”
    In the second defense it is alleged that the bond was obtained through fraudulent representations of Baker, as to the financial condition of a corporation by the name of the Bedford Iron Company.
    A reply was filed to this answer, denying every allegation therein impeaching the validity of the bond.
    The following is a copy of the bond :
    “ Know all men by these presents, that we, Calvin Carr ■and David A. Dangler, of Cleveland, Cuyahoga county, •Ohio, are held and firmly bound unto George A. Baker, of Bedford, in said county and state, in the penal sum of twenty thousand dollars, to the payment of which, well .and truly to be made, we hereby bind ourselves, our heirs, ■executors, and administrators, firmly by these presents, ¡signed with our hands, and sealed with our seals, and dated this-day of August, 1867.
    “The conditions of this obligation are such, that whereas the said George A. Baker, is the owner of one hundred and ninetj^-oue shares of the capital stock of the Bedford Iron •Company, of one hundred dollars each, and as such stockholder is liable for the debts of said company; and whereas the said George A. Baker is also personally liable as surety for said Bedford Iron Company, upon a note for four thousand dollars, payable to the Second National Bank in the city of Cleveland, and with interest due August 6, 1867; and whereas the said George A. Baker, by reason of his connection with said Bedford Iron Company, as president, director, committeeman, or otherwise, may have incurred other and further liabilities, than those hereinbefore ■specified; and whereas the said George A. Baker, has this day sold and assigned unto the said Calvin Carr, the aforesaid one hundred and ninety-one shares of the capital ■stock of said Bedford Iron Company, and four five hundred •dollar bonds of the first mortgage bonds of said Bedford Iron Company; and whereas the said Calvin Carr and David A. Dangler, in consideration of the premises, have .agreed to assume and pay the foregoing liabilities, and all ■other liabilities which have been incurred by the said -George A. Baker, by reason of bis connection with said Bedford Iron Company, as stockholder, surety, president, director, or committeeman thereof, or which may result from his connection with said iron company, in either or all of the aforesaid capacities, to indemnify and save harmless the said George A. Baker therefrom. Now, if the said Calvin Carr and David A. Dangler, shall well and truly pay the aforesaid liabilities and indebtedness of the said George A. Baker, and shall indemnify and save harmless the said George A. Baker, from liability of every description whatsoever incurred by him, as a stockholder in said company, or as a committeeman or officer thereof, and from all liability that may result from said Baker’s connection with said company, and his actions in either and all of the capacities aforesaid, then the above obligation shall be void, otherwise it shall be and remain in full force and virtue.
    “ Calvin Carr, [seal.]
    “ D. A. Dangler, [seal.]
    “ as surety ”
    
    
      The bond was accepted by the plaintiff in performance of the following agreement:
    
      “To George A. Baker, JSsq. :
    
    Sir : — If the proposition of Messrs. Otis & Co. shall, upon consideration, be rejected by the Bedford Iron Company, we will then take an assignment of your stock in said company, together with four five hundred dollar bonds of the first mortgage bonds of said company, and will give you bond in the penal sum of twenty thousand dollars, conditioned to indemnify and save you harmless from all liability of every description whatsoever incurred by you as president, director,"stockholder, committeeman, or surety for said Bedford Iron Company.
    Calvin Carr,
    S. U. Tarbell,
    L. Tarbell,
    I). A. Dangler.
    I accept the above proposition.
    •Cleveland, July 27, 1867.
    George A. Baker.”
    On the trial, the jury returned a verdict for the plaintiff.. There was a motion for a new trial on the ground that the verdict was against the evidence; also, on the ground of error in the charge, and in the refusal to charge. The motion was overruled and a bill of exceptions taken embodying all the evidence and the charge of the court.
    Judgment was rendered on the verdict, which, on error,, was affirmed by the district court.
    The present petition in error is prosecuted by David A. Dangler, one of the original defendants, to reverse these judgments.
    The several propositions, arising on the record, which control the case, are laid down by the court.
    
      J. W. Tyler, for plaintiff in error.
    As to Dangler’s liability, see Boult v. Brown, 13 Ohio St. 370 ; 32 N. Y. 445 ; Pepper v. State, 22 Ind. 399 ; 111 N. J. 155 ; 15 N. J. 163 ; 53 Mo. 576; 63 Mo. 212 ; 16 Wallace, 1; 8 Wend. 360; and see Ferry v. Patterson, 5 Humph. 133.
    
      Marvin $ Hart, for defendant in error.
    [This case was decided before Johnson, J., came on the bench. — Rep.
   White, J.

In this case, four persons, including the defendant, agree to execute a bond to the plaintiff. One of the persons who was to execute the bond, procured, by fraud, a bond to be executed and delivered by the defendant, in which the names of two of the persons who were to join in the execution were omitted. Held: 1. That the fraud constitutes

no defense to a suit on the bond, where the plaintiff had no notice of the fraud at the time he accepted the same, and parted with the property in consideration of which the bond was given. 2. That the plaintiff might have required the bond to have been executed by all the parties, but he was not bound to do so. He might waive his right to require the bond to be thus executed by all the parties ; and the fact that the bond presented to the plaintiff and accepted by him, was the bond of two of the parties only, is no evidence to charge him with notice of the fraud practiced in its procurement.

Judgment affirmed.  