Opinion op the Court,
Gary, P. J.The appellee sued the appellant as" surety upon a penal bond given by the members of the firm of J. 0. Ferguson & Co. to the appellee, conditioned {inter alia) that that firmshoukl pay any damages sustained by any person on account of neglect of duty, fault or fraud of the firm as proprietor or manager of a warehouse for the storage of provisions.
This bond was given in compliance with rules and regulations of the Board of Trade, of Chicago, of which the appellee was then president.
The breach is that the firm borrowed money from the Metropolitan Bank, and as collateral security, deposited with the bank warehouse, receipts for pork in their own warehouse; that they made away with the pork, became insolvent, and the bank is the loser.
The defense was made by pleas to which demurrers were sustained, and judgment entered for the appellee.
The defense is two-fold. First, that the bond being given under rules and regulations of the board to the president of the board, no one, not a member of the board (which the bank was not), could have any benefit from it; and that therefore this suit, for the use of the bank, to recover damages sustained by the bank, is not sustainable.
To this defense the answer is, that notwithstanding the rules and regulations of the board, this is a common law bond, not statutory; is in itself lawful; and that the words of the condition cover damages to any person. It is not contended that the word person excludes a corporation. 18 Am. & Eng. Ency. of Law, 404, et seq.
And “for the breach of a covenant to do a particular thing * * though the covenanter has no beneficial interest in the performance of the covenant, yet he recovers the value of the thing to be done.” Smith v. Hertz, 37 Ill. App, 30; see also Page v. Lewis, 68 Ill. 604.
With the distribution of the damages, when collected, the appellant is not concerned.
The second defense is based upon the following release;
“ The undersigned, the "Metropolitan National Bank, of Chicago, in consideration of the execution and delivery by Nathan M. Neeld and wife, Edward W. Eergusonandwife, E. B. Howard and wife, and John Q. Ferguson, to Henry Botsford, of their quit claim deeds of that certain real estate in the county of Cook, and State of Illinois, known as the J. C. Ferguson Packing House property, and of the assignment by said J. C. Ferguson & Co. to Ilately Brothers, of all their right, tide and interest in and to any and all moneys at any time payable to said J. C. Ferguson & Co., for or on account of said packing house property, under and by virtue of that certain written contract between certain packers of hogs in the County of Cook, and State of Illinois, does from all debts due and owing from them to said bank, hereby release said Neeld, Edward W. Ferguson, Howard and John W. Ferguson, and each of them, as to all money, property, claims, demands, rights and interests which they may hereafter obtain or acquire, except their liability or the liability of any or either of them, upon a certain bond bearing date of the 31st day of January, A. D. 1884, in the penal sum of $5,000, executed by said Neeld, John Q. Ferguson and Edward W. Ferguson and their sureties to E. Nelson Blake, president of the Board of Trade of the city of Chicago, his successor or successors in office, for the use and benefit of any person or persons entitled to receive the same, and except the right of said bank to institute and' prosecute any suit or proceedings against said Board of Trade; and except the right of said bank to prosecute- any and all suits now pending in attachment or otherwise, whether in said county of Cook or elsewhere; it being intended hereby not to in any way release or impair the obligations of the parties to said bonds, either as to said principals or sureties, but to leave the same in full force the same as though this instrument had not been executed, and to leave said bank free to prosecute any suits against said Board of Trade growing out of any business or transactions between the firm of J. C. Ferguson & Co., and said bank' connected with said Board of Trade or warehouse receipts, held by said bank and registered by said Board of Trade, or some of its officers, agents or employes; it also being intended hereby not to waive, release or impair the right of said bank to prosecute any such suits, and recover and receive any sum which can be or may be made against the property attached and the parties garnisheed, or that may hereafter be attached or garnisheed in any such proceedings. Said bank hereby reserves the right to take all necessary proceedings to have the property assets, choses in action, rights, credits now possessed by said parties, or any of them, or in which they, or any or either of them, is or are now interested, applied toward the satisfaction of the debts due from said parties to said bank.
In witness whei’eof the said Metropolitan Bank of Chicago, has caused these presents to be signed by its president, and its corporate seal to be hereto affixed this fifteenth day of March, in the year of our Lord, one thousand eight hundred and eighty-seven.
The Metropolitan National Bank of Chicago,
E. .0-, Keith, President.”
That release has no effect upon the liability of the ■ appellant. Mueller v. Dobschuetz, 89 Ill. 116. The judgment is affirmed.