
    Almgren v. Dutilh et al.
    
    
      Charter-party. — Parol evidence.
    
    The reservation, in a charter-party, of so much of the vessel, “as may he necessary for the accommodation of the officers and crew, and the storage of provisions, water and fuel for the same,” is not restricted to such parts as are indispensably necessary; hut the officers and crew are to he accommodated in the mode proper for their station, taking into consideration the character of the vessel and the nature of the voyage; and if such parts of the vessel are -voluntarily surrendered for the storage of the freight, the master can recover the customary charges for carrying the same, in addition to the sum mentioned in the charter-party. What portion of the vessel was within the exception, is a question of fact for the jury.
    Parol evidence is admissible, to explain a written contract, by applying it to the subject-matter ; such evidence is not only competent, but indispensable.
    Weit op Eeeoe to the Superior Court of the city of New York, where a motion for a new trial, upon a bill of exceptions had been denied, and judgment entered upon a verdict in favor of the plaintiff.
    This was an action by the plaintiff, the master of a Swedish vessel, to recover from the charterers thereof, certain freight which he claimed to be due in respect to portions of the vessel, excepted from the terms of the charter-party.
    In October 1844, the plaintiff chartered his vessel to the defendants, for a voyage from New York to certain ports in the Mediterranean and back. *By the charter-party, he demised to the defendants “ the whole tonnage of the said vessel, except so much thereof as may be necessary for the accommodation of the officers and crew, and the stowage of the provisions, water and fuel for the same.” It further provided, that the vessel would carry the bulk of 1450 to 1500 Charleston bales of cotton; and the defendants agreed to pay a gross sum for the whole of the hull of said, vessel; and that in case the master should take freight in his cabin, the charterers or agents would furnish the same at the current rates of freight.
    The vessel was loaded and made the voyage, and the charterers paid the charter-money, amounting to $5700. The master carried in the lower cabin, and in the storeroom, both on the outward and homeward voyages, certain freight, for which he claimed an extra allowance of about $700, to recover which this suit was brought. The defendants insisted that the space occupied by such freight was not within the exception in the charter-party.
    *On the trial, before Vanderpoel, J., the plaintiff offered to show by parol that he had pointed out to Mr. Dutilh, the portions of the vessel reserved for provisions, cables and other things necessary for the ship, and for the accommodation of the officers and men; and had informed him, that if he wanted to put cargo therein, he must pay for the same separate for the rest of the ship. This was objected to, on the ground that it went to vary the written contract; the objection, however, was overruled, and the evidence admitted; to' which the defendants’ counsel excepted; as also to the refusal of the judge to instruct the jury that the law would not imply a contract, from this parol testimony, in reference to the parts of the vessel for which the extra freight was claimed, the same being included in the express contract. It was shown, that the vessel, without filling those places, would carry the bulk specified in the charter-party.
    *The defendants’ counsel requested the court to charge the jury, that the defendants were entitled, for the sum stipulated in the charter-party, to the use of the whole of the vessel, except such parts as were actually and indispensably necessary for the accommodation of the officers and crew, and storage of provisions, water and fuel for the same. This was refused, and an exception taken.
    The learned judge charged the jury, that “ the portions of the vessel for which freight was now claimed from the defendants, were not necessarily included in the letting of the charter-party, and that it was competent for the plaintiff, at the request of the defendants, to receive extra quantities of cargo, beyond that contemplated by the charter-party; storing the same in those parts of the vessel which, under the fair and ordinary construction and use of the vessel, were necessary and proper for the accommodation of the officers and crew, and the storage of provisions, water and fuel for the same. That they must decide, as questions of fact, whether the parts of the vessel for which freight was claimed, were necessary for the accommodation of the officers and crew, and the storage of provisions, water and fuel for the same, within the meaning of the charter-party, and whether such parts were applied to the carriage of extra cargó, at the request of the defendants, and if they were, the plaintiff was entitled to recover for the use of the same by the defendants, upon an express contract, fixing the rate of the same, if such ^contract had been proved, or upon an implied contract as to the rate of freight, if no express contract had been proved, such sum as the freight of the cargo carried therein, would, at the usual rates of freight, amount to.” The defendants’ counsel excepted to the charge.
    There was a verdict for the plaintiff, for the amount of his claim; and the court' at general term having denied a motion for a new trial, made upon a bill of exceptions, and entered judgment upon the verdict, the defendants sued out this writ of error
    
      JEvarts, for the plaintiff in error.
    
      Bellowe, for the defendant in error.
   Gardiner, J.

According to the charter-party, the plaintiff “ granted, and to freight let, to the defendants, the whole tonnage of the vessel, except so much thereof as may be necessary for the accommodation of the officers and crew and the storage of provisions, water and fuel for the same,” for a voyage from New York to the Mediterranean and back.

One question',, perhaps the most important, is, as to the force to be given to the word “-necessary,” occurring in the exception above quoted. The defendants requested the judge to charge, “ that they were entitled to the use of the whole vessel, except such parts as were actually and indispensably necessary for the accommodation of the officers,” &c. This, certainly, is not the language of the contract, and the introduction of the terms, “ actually and indispensably,” would seem to imply that the word “necessary,” in the connection in which it is found, was used in a less stringent sense by the parties than would comport with the construction contended for by the defendants. The parties do not intend, by *the exception, to limit the owners to the smallest possible space which could be occupied, without preventing the intended voyage. The officers and crew were to be accommodated in the mode adapted or fitted to their station — the character of the vessel and the nature of the voyage being taken into consideration. What was necessary in this sense, was a question of fact, and left as such by the judge to the jury, who found that the lower cabin, forecastle and store-room were necessary for the accommodation of the officers and crew, and the storage of provisions, water, &c.

The testimony of Godecke was properly received, if we are right in our construction of the contract. It did not go to vary the written agreement, but to prove, by the acts of the parties, the space which they esteemed necessary for the accommodation of the crew. If this was a question of fact, I perceive no objection to its being established by this sort of evidence. The testimony of Ellis and Thompson were to the same point. The only objection taken to any of the evidence was, that it tended to vary the written contract; on the contrary, its sole object was to apply the agreement to the subject of it; this kind of testimony, it is hardly necessary to say, is not only competent, but indispensable. I think the judgment should be affirmed.

Judgment affirmed.  