| Ill. | Jan 25, 1886
delivered the opinion of the Court:
Under the charter and by-laws of the board of trade of Chicago a member is not permitted to sell or assign his right of membership, or the certificate thereof, while there are any unadjusted claims against him in favor of other members of the board. Such' unadjusted claims or liabilities against a ' member constitute a lien upon his right of membership, hence any sale or transfer of the same," or of the certificate of such membership, will be inoperative as against other members of the board having valid claims against him. It appears that within a short time after the execution of the appeal bond sued on, Weaver, availing himself of the certificate of membership still in his possession, in utter disregard of appellee’s rights, continued to operate as a member of the board of trade. His speculations among the members of that body, whether so intended or not, soon resulted in involving him in liabilities to other members of the .board to the full value of the certificate, and such liabilities continued to exist up to- the time of the commencement of this suit. After having thus incumbered appellee’s certificate of membership standing in his name, to the amount of its full value, and having failed to sustain his appeal, he offered to assign to her the then worthless certificate, and this offer is relied on by him and his surety as the chief defence to the present suit. Such a defence is wholly destitute of merit, and can not prevail. The position of appellants affords a striking illustration of that species of construction called “sticking in the bark.” At the time of giving the bond, the certificate in question was the evidence of a valuable property right. It was to protect this right that appellee went into a court of equity and prosecuted her suit to a successful termination. By the defendant’s appeal, which deprived appellee of the immediate fruits of her decree, he, in legal effect, bound himself, in the event he failed to reverse the same, to transfer and deliver to her the certificate in question, and it is but a fair and common sense construction of the contract to say that he intended to, and did, bind himself to make such a transfer of it as would pass to her the right represented by it, as the same then existed, unincumbered and unaffected by anything he might subsequently do. A promise to do a particular thing always carries with it an implied stipulation that the promisor will not do anything to make the performance of the promise unavailing. So by executing the appeal bond, Weaver impliedly covenanted that he would not, pending the appeal, do anything to render compliance with the condition of the bond a fruitless and idle ceremony, in the event the appeal should fail. Weaver, by his conduct, put it out of his power to make such a transfer of the certificate as would confer on her the ownership of an unincumbered membership in the board of trade. His offer to perform therefore afforded, as we have already seen, no defence to the action.
It also follows, from what we have said, that the value of the certificate at the time it should, by the terms of the bond, have been transferred, was not, as is claimed by appellants, the true measure of damages, but rather what the certificate would have been worth if Weaver had done nothing pending the appeal- to impair its value.
The point is also made that the certificate is not property, and that it therefore has no value which the law recognizes. The fallacy of this position is directly met by the case of Weaver v. Fisher, 110 Ill. 146" date_filed="1884-05-19" court="Ill." case_name="Weaver v. Fisher">110 Ill. 146. That case expressly decides that such a certificate is property.
We have nothing to do with the amount of damages assessed by the trial court. That was a question for the Appellate Court, and not this.
It is conceded there was a breach of the condition of the bond, and, as we have already seen, the matters set up by way of confession and avoidance afforded no answer to the action.
Nothing, then, remained of the ease except -the question of damages, and that has been conclusively settled against the appellants. Indeed, from whatever aspect we view the defence in this case, we perceive no merit in it.
The judgment will be affirmed.
Judgment affirmed.