(dissenting):
The defendants were sued upon a bond executed by them and their sureties, and the only fact apparently necessary to establish their liability under its provisions was the charge of dishonesty alleged against their principal. The defendants claimed immunity from the fact which they alleged, of the advancement of their principal in the bant to a position of more responsibility and graver duties in reference to which they did not contract. In other words he had ceased to be a bookkeeper, and they had not guaranteed his conduct in his new ]3lace. The defendants sought, by all methods available, to establish the alleged change, and this contention was at length submitted to the jury as the controlling feature of the controversy. The learned justice presiding at the trial said to the jury: “ The only point which it is necessary for you to consider is, whether or not there was any change made in relation to the employment of Cornwell by the plaintiff, which varied the liability assumed by the defendants by reason of the agreement which they entered into and, further, that upon that point the simple question was whether or not Cornwell was continued as a bookkeeper. This view of the contest was based upon the adjudged doctrine of several cases in this State and in England,. namely, that the liability of sureties is always sirictissimi juris and cannot be extended by construction, and further that the recitals in bonds undertaking to express the precise intent of the parties, controls the condition or obligation which follows, and does not allow it any operation more extensive than the recital which is its key. (Mayor v. Kelly, 98 N. Y., 468; Nat. Mech. Bank. Ass’n v. Conkling, 90 id., 116; Manuf. Bank v. Dickerson, 41 N. J. Law [12 Vroom.], 448; N. W. Nat. Bank v. Keen [Phila Common Pleas], 37 Legal Int. 124; 14 Phila. R., 8; Nat. Mech. Bank v. Conkling, supra, in Sup. Ct., 24 Hun, 498.) *300The question is discussed elaborately in the first case cited, Mayor v. Kelly (supra), and an attempt is made'to harmonize the seeming incongruity of limiting the effect of the condition by the recital when the former embraces clearly and distinctly more than the latter indicates or suggests,as in tiffs case. It is said for example that “sureties are never discharged by the imposition of new duties which are distinct and separable from those protected by the guaranty, unless such new employment renders impossible or materially hinders or impedes the proper and just performance of the duties guaranteed,” and further, that the new duties exposed the principal “ to temptation or gave broader opportunity for dishonesty is immaterial, for it is the very substance of the contract of the sureties that as' bookkeeper he will be honest and faithful whatever temptation may approach.” The responsibilities, it may "be said, were here graver in consequence of his greater exposure to temptation. The theory, however, upon which the case was conducted and submitted to the jury was more liberal than was precisely permitted by the promulgated rules governing the rights of the contracting parties, The question was not to put it correctly, whether there was a change in the position of the principal only, but whether, if such a change had been made, it hindered impeded a just and proper performance of the duties guaranteed.
The defendants, however, were entitled to introduce evidence affecting the issue' which was thus presented to the jury for their determination, and to which reference has been made, as submitted by the learned justice presiding, namely, whether there was any change (in relation to the employment of Cornwell by' the bank) which “ varied the liability under which these defendants came by reason of the covenant or obligation into which they had entered.” Upon that issue several questions were asked which seemed to be pertinent, but were excluded. It was a proposition on behalf of the defendants that their principal had been made a loan clerk, and thus given a new position, and the witness called on their behalf was asked if he knew the duties of a loan clerk, and having responded in the affirmative, was asked to describe them; the question was objected to and excluded. The question was also asked of another witness “ Is there any difference in the duties of a bookkeeper and those of a loan clerk, or assistant cashier generally ? ” "Which was *301excluded and exception taken. A further question was asked “ Is there any common acceptation among bankers of the duties of bookkeepers in banks?” This was excluded. Another question was asked “Did Mr. Cornwell, to your knowledge, perform the duties of a loan clerk in the Fourth National Bank ? ” This question was also excluded and exception taken. This question was also asked of Mr. Cornwell “ In handling the securities or dealing with the securities in this bank, did you perform the duties which are ordinarily performed by assistant cashiers within your knowledge ? ” It was excluded and an exception taken. Several of these questions were asked of a witness, who was a clerk in the plaintiff’s employment, during the period that Mr. Cornwell was engaged there, and a question was asked of another witness “ Can you state whether from your knowledge of the duties of a bookkeeper in the bank, what was done by Mr. Cornwell, was or was not outside of the ordinary duties of a bookkeeper ? ” And, also “ Is it within the ordinary duties of a bookkeeper, within your knowledge, to handle the securities of a bank ” and still further “ Is it not a peculiar and special duty which has devolved upon some particular person higher than a bookkeeper, to handle securities which a bank takes on call loans?” These questions were all excluded and exceptions, duly taken.
The relevancy of this proof arises from the fact that the principal had been assigned to duties in immediate connection with the cashier of the plaintiff, and had access to securities which, it would seem, were deposited upon loan accounts, and as to which, to some extent at least, he was a bookkeeper, inasmuch as he made entries upon a book kept in reference to them; and from the fact that the issues submitted to the jury, as already stated, involved a variance between the ordinary duties of a bookkeeper and those of a loan clerk or person occupying. the position to which the principal was advanced, if advancement it were; and from the further fact that the learned justice, during the trial of the cause, announced that the principal was a bookkeeper, that there was no. doubt of it, and that was all the bond was good for. The learned justice seems to have been impressed with the conviction that if the principal continued in the bank as a bookkeeper, no matter what duties were superadded, the defendants were hable on their obligation, and he *302so stated to the jury; but at the same time he said that if the principal was virtually removed from the position of bookkeeper and put into another which enhanced the liability of the defendants on their obligation or the risk which they ran as sureties, they were entitled to a verdict. If anything of that kind was done, and the principal was continued as a bookkeeper all the time that the other duties which have been spoken of were performed, then the obligation attaches and the defendants are liable. As we have seen, this is not precisely the rule established by the case to which reference has been made. It does not present the abstract proposition whether a man is continued as a bookkeeper, but whether the new employment rendered imposssible or materially hindered or impeded a proper and just performance of the duties guaranteed.
It is apparent, from the incidents of the trial thus stated, that it was a mistrial, inasmuch as the evidence excluded, if received upon the question submitted, might, if received, have satisfied the jury that the new employment constituted the principal, more than the bookkeeper, and, as matter of fact, therefore, was beyond the obligations assumed by the defendants in reference to his conduct.
For these reasons the judgment must be reversed and a new trial ordered, with costs to abide the event.
Judgment and order affirmed