(concurring.) The contract is to be fairly construed. Its terms, so far as they are plain, must govern. Special phrases of equivocal meaning are not to be resolved so as to defeat the manifest purpose of the entire contract. One party intended to purchase insurance, the other to sell it, and the instrument must be construed so as to support that intention. The *278defendant, upon performance as specified on the part of the assured, promised to pay to his heirs, in the event of his death, not a fixed sum, but “all of the amount realized from one assessment, not exceeding $2,000.” The defendant also agreed that, upon the death of the assured, it would assess the members of the society according to a printed schedule contained in its bylaws. It did not agree to assess some, and not all; not those in one division, and except those in another division, but all of them; and it agreed to pay to-the heirs of the assured “the pro rata of the amount so derived,” not exceeding $2,000. This the contract says means “all of the amount realized from one assessment, not exceeding $2,000.” The defendant refused to levy any assessment, and refused to pay the plaintiff. It put its refusal upon the ground of fraud in procuring the certificate. The issue of fraud has been determined upon this trial against the defendant. Accepting the verdict in that respect, the case stands that the defendant unjustifiably refused to levy the assessment and pay the proceeds to the plaintiff. It ought to pay him,, and the only question is, how much? When the case was here upon a former appeal, there was no evidence tending to show what amount could be realized from one assessment, and there was no evidence in the case by which to-measure the amount of the plaintiff’s recovery. The plaintiff had recovered the largest possible sum without evidence tending to show that any sum could be realised from an assessment. It seemed to me that, in an action at law to recover a sum of money on contract, the plain tiff must prove, as a part of his case, facts enough to enable the jury to compute the amount due him. Ho method of ascertaining the amount in an action at law was then presented or suggested, and, not knowing that any was available to the plaintiff, I suggested that possibly the plaintiff would be obliged to have recourse to equity, in order that the proper assessment should be levied, collected, and its proceeds paid to the plaintiff. But upon the re-trial the plaintiff has availed himself of the reports made by the defendant to the state insurance department, and, from the data contained in them, has submitted evidence tending to show that an assessment levied according to the terms of the contract would amount to much more than $2,000. By the contract the defendant does not agree to levy the assessment, unless the condition of its funds makes an assessment necessary; in other words, whether it shall levy an assessment in order to pay the plaintiff is a matter for it to decide. It is true that the amount of the assessment may be more than the amount “derived” or “realized” from it, but, in the absence of an actual test, it is the best evidence obtainable; and since better evidence, namely, the actual levy and collection, is withheld by the defendant, it should not be heard to complain of the absence of evidence caused by itself. If the defendant had performed its contract, it would have paid the plaintiff $2,000. Hot performing it, it owes him $2,000, and hence the recovery is right. The defendant complains that its testimony, tending to show that an assessment would not have produced $2,000, was improperly excluded. All the offers of testimony were based upon propositions at variance with the contract with the assured respecting the assessment. It is no answer to the plaintiff that the defendant’s agreements with its other members would not permit it to make the assessment which the contract calls for. I concur for affirmance.'
Learned, P. J., concurs.