Kellogg v. Scott. to the service specified, unless it expressly appears that it was not intended to be so restricted. The reason for thus limiting the general terms of the condition by the recital is said to be that the object of the bond being a security on employment, if the parties state in the bond the character or scope of the employment, that will be taken as indicating the limit of the surety's contract in the absence of any words which show that the parties intended that the recital shall not have this effect. And many cases have been cited in which, on the construction of the agreement itself, the recitals have been so construed to restrict the general words in the condition. The leading case is Arlington v. Merricke, 2 Saund., and the cases are collected in the note (h) (at p. 415, 3). Also in 1 Ch. Cont. (11th Am. ed.) 765; 1 Brandt S. & G. ch. 6 § 166, &c., and National Banking Association v. Conkling, 90 N. Y. 116 (Earl, J., at p. 121). But, in my judgment, the liability of the surety for a breach of the condition of the bond will still remain, even if it be held that the clause of the bond relating to the payment of money does not cover money under Scott's control as cashier. The bond secures "the faithful performance of Scott's duty as bookkeeper," and this certainly includes the true entry and footing of the cash-book and pay-rolls, which as bookkeeper he makes up, as well as the duty of not abstracting his employer's money which would come within his reach in the course of his employment as bookkeeper. For his failure to perform this duty of keeping true entries, the bond for securing his faithful services as bookkeeper is forfeited, and inasmuch as he himself took the moneys, whose abstraction was concealed by the false entries which he made as bookkeeper, the employer, so far as the terms of the bond go, would, I am inclined to think, be entitled to recover substantial damages to the amount of the abstractions, either by the bookkeeper himself in any capacity, or by another, if the abstractions were intentionally concealed from the employer by means of the false entries made by the bookkeeper. Rochester City Bank v. Elwood, 21 N. Y. 88 (1860), and Jephson v. Howkins, 2 Man. & G. *366 (1841), seem to establish the right to recover such substantial damages as the Kellogg v. Scott. result of false entries for the bookkeeper's own profit. But assuming that the loss in question may be held to be the result of the failure of Scott to perform his duties as bookkeeper, the most serious question raised, in reference to the liability of the surety in this bond, arises from the fact that Scott was employed as cashier after the giving of this bond, which recited only his employment as bookkeeper and collector. This employment as cashier, with control as such over all the money of the office as well as of the books-for he still continued as bookkeeper-was a material change by the act of the parties (Kellogg and Scott) without knowledge of the surety, in the nature of the duties of the employes, and it was a change that materially altered the duties of the employment, so as to affect the peril of the surety. The employment which was in the mind of the surety upon giving the bond and which the obligee was about to make, was that of bookkeeper and collector. These descriptions of the character of employment do not of themselves indicate an employment which would give control of the entire cash of a business like complainant's, as well as of its books, nor is there any proof in the case that by the employment as bookkeeper and collector in complainant's business, the control of the cash of the business as cashier was supposed by the parties to be included. The general rule is settled that in the case of bonds to secure the performance of the duties of an office or of an employment, where the nature of the employment is so altered, either by the act of the parties, employer and employe, or of the legislature (in case of public office), that the risk of the surety is materially altered, the bond is avoided, even though it is forfeited by a breach of the duties of the original office or of the original employment, which was the subject of the guaranty. This general rule has not been questioned since the leading cases. Bonar v. MacDonald, 3 H. L. Cas. 226 (1850); Pybus v. Gibb, 6 El. & B. 902 (1856), and these cases were approved and fol lowed in this point in Manufacturers' Bank v. Dickerson, 12 Vr. 448, 451, &c. (Supreme Court, 1879). The facts in this case come within the application of this rule. The bond, as I construe it, was given on the promise to the Allen v. Aylesworth. surety to employ Scott as bookkeeper and collector, and his employment subsequent to the execution of this bond, as cashier as well as bookkeeper, did make, as I find upon the facts in the case, a material change in the nature of his employment, by which the risk of the surety was increased or varied to her disadvantage, and the bond must therefore be held void as against the surety and those who claim under her. In this case the defence of discharge of the surety by alteration of the contract of employment was not specially set up in the answer of the insurance company or of the infants, the answers of the latter being formal only, and submitting their interests to the protection of the court. The question, however, was first presented by the complainant's own evidence at the trial, and was fully argued by counsel, and is, in my judgment, the vital question in the case. Counsel may, if they desire, apply to amend the answers in order to put the defence formally on the record. As to the infant defendants, the court usually allows or directs such amendments in either bills or answers filed on their behalf as may be necessary to protect their interests. Mitf. & T. Pl. & Pr. 419. GEORGE HENRY ALLEN V. JONAS W. AYLESWORTH et al. [Filed August 31st, 1899.] 1. The fact that employers, when discharging an employe, gave certain reasons therefor at the time, does not prevent them from assigning additional reasons in an action for such discharge. 2. Where an employe who had agreed to work faithfully for his employers' interest secretly examined their books, to which he had no right of access, such act was a breach of his contract, and his employers, acting in good faith, were entitled to discharge him. Allen v. Aylesworth. 3. When an employe wrongfully examined his employers' books, to which he had no right of access, the fact that such employe's refusal to obey orders to instruct another in his duties was anticipated, and brought about by his employers to give them an additional reason for his discharge, is not sufficient to show bad faith on their part in discharging him for his misconduct in secretly examining their books. 4. In settlement of an employe's interest in a firm, a contract was made by which he agreed, in consideration of a payment of money and a salary for future employment, to continue to work faithfully for his employers' interest. The contract further provided that his employers should execute a trust of certain securities to be paid to him on the completion of the contract, and that, if he was discharged for cause, such securities should be returned to them.-Held, that such employe had no interest in the securities prior to the completion of the contract, and, on being discharged for misconduct before the expiration of the term, he was not entitled to recover them. On bill, &c. Mr. Samuel Kalisch, for the complainant. Mr. Elwood C. Harris, for the defendants. EMERY, V. C. Allen, the complainant, was in the employ of defendants Aylesworth & Jackson, under a written agreement for his employment for the term of two years and two months from November, 1896, and pursuant to which securities to the value of $1,000, purchased by these defendants, were deposited with a trustee upon the following express trusts and conditions: "To pay the net income derived from said investments to said George Henry Allen as long as he remains in the employ of said party of the first part. "To pay over said stock and said balance on moneys to said George Henry Allen upon the production by him of an order in writing signed by said party of the first part [Aylesworth & Jackson] directing said trustee so to do. "To pay over said securities to said party of the first part [Aylesworth & Jackson] if said George Henry Allen shall have been discharged for good and sufficient cause by said party of the first part. "To pay to said George Henry Allen, at the expiration of said term of two years and two months, said securities and sum held in trust, provided he has lived up to the terms of this agreement, both in spirit and letter, and not otherwise." Allen v. Aylesworth. The provisions of the agreement as to the "terms" of employment were that complainant agreed with defendants "to remain in their employ and to work faithfully for their interest and advantage, following and obeying such instructions as they or either of them may give him from time to time," and the defendants agreed to pay the specified wages to complainant, "provided said Allen faithfully performs such work as said party of the first part [Aylesworth & Jackson] provides for him to do, and obeys such instructions as may be given him by said party of the first part, or either of them, and not otherwise, of which the said party of the first part are to be the sole judges; the said party of the first part reserve to themselves and their personal representatives, however, the right to discharge said Allen without assigning any cause therefor at any time, provided that said party of the first part, or their personal representatives, at the time of said discharge of said Allen, and as a condition precedent thereto, shall hand over to him, the said Allen, a paper writing directing Frederick R. Pilch, trustee, to turn over the trust securities and moneys hereinafter set forth, and in his hands, to said Allen, and to take said Allen's receipt therefor, which the said trustee shall thereupon do." Previous to the making of this agreement for employment, complainant had an interest in the profits of the business carried on, and on signing the agreement $300 was paid in cash by defendants to complainant, and complainant, in consideration of this payment and of the agreement for employment at the stipulated wages, released defendants from all claims to date. The agreement further stated that the purchase of the securities by defendants and their deposit with the trustee, was a further inducement to complainant to remain in their employ and to render them faithful and efficient service. On May 7th, 1897, defendants discharged complainant from their employ, assigning at the time as the cause of discharge, first, that he had entered the office desk and examined books and papers in their absence and without their knowledge or consent; second, that he refused to obey instructions given him. by Jackson, one of the defendants, to instruct another employe in the work about which he (Allen) had been engaged. In the |