| Mich. | Jan 11, 1882
The plaintiff in error brought an action of usswnpsit upon a certificate of membership issued by the defendant, wherein for a-consideration it agreed to “insure the life of John EE. Burland in the amount of such sum as will equal eighty cents for each certificate in force at tlie time said amount is received at the home office, and not to exceed four thousand dollars.” This amount was to be paid to the said J. H. Burland at the expiration of a certain period if he should be then living, and if not living to Amy M. Burland, his wife, within sixty days after due notice and proof of his death.
The declaration alleged the death of J. BL Burland; that at the time of his death five thousand life certificates were in force, proof of his death being made and given the company, and a failure to pay.-
The defendant put in a plea of the general issue, and gave notice therewith that John EL Burland obtained said certificate by making false and fraudulent statements and representations in his application therefor. After the evidence was introduced the court directed tlie jury to find a verdict for the defendant.
In support of the ruling of the court below, it was argued in this court that the plaintiff had failed to show any money in tlie company’s hands to pay this loss, but on the contrary
In a case like the present, Bates v. Detroit Mutual Benefit Association, application was made at the last October term for a mandanvus to compel an assessment. The application was denied, as the court was of opinion that mandamus was not the proper remedy. No written opinion was filed.
The case presented is one of contract between parties and a breach thereof, and even should we accept as correct the argument of counsel as to the nature of the agreement, still the conclusion would not follow that mandamus was' the proper remedy. Such a writ does not purport to adjudge or decide any right. It is rather in the nature of an award of execution than of judgment. It is the mode of compelling the performance of acknowledged duty or enforcing an existing right rather than deciding what that right or duty is. The award is no finality.. It concludes nothing. If the writ is denied, the relator cannot have error, and if granted, the award could not be pleaded in law. Layton v. State 28 N. J. 515, cited in McBride v. Common Council 32 Mich. 364.
If the writ were issued in this case, it could not direct the payment of any specific amount, as that is dependent upon the number of certificates in force at a given time, which must first be ascertained, so that a question might arise whether it would not be necessary to issue several in order to give the party adequate relief. But why should this be done while the defendant company denies all and any liability because of fraud or false representations ? Here is a
The argument that the company has no funds to pay a judgment, if one is recovered, can be no reason for issuing the writ. If it were, this court might be under the necessity of issuing it in the case of insolvent debtors generally. Indeed, it may be said that a private corporation cannot, by the peculiar form of contract it enters into with individuals, nor because of its insolvency, or both, avoid an action at law upon a breach of its agreement, or confer original jurisdiction upon this court for the collection of money demands.
The judgment of the Superior Court must be reversed with costs and a new trial granted.