
    James G. McKee, Appellant, v. Charles De Witt, Respondent.
    
      Ambiguous writing—it may be explained by pm'ol evidence of the circumstances of its execution.
    
    "Where an ambiguity in a written contract is created by extrinsic evidence, the same character of evidence is admissible in order to solve the ambiguity.
    In an action brought to recover damages for injury done to some potatoes in a boat, by reason of its being sunk by ice and heavy waves while at Blackwell’s island, the plaintiff offered in evidence the following agreement:
    “New York, January 28d, 1895.
    “ Deceived this day from O. P. De Witt, one hundred dollars (§100) on account of Peerless potatoes on the boat Quebec, sold to said De Witt tills day for one dollar and fifty cents (§1.50) per bbl. of 172 lbs., delivered at Blackwell’s Island. De Witt guarantees to return the boat without damage, McKee to pay towing.
    “ JAMES Gr. McKEE.
    “ CHAKLES P. DE WITT.”
    
      Held, that the contract could not be understood unless the situation, as it existed when the contract was made, was shown, and that for that purpose parol evidence was competent to show, by the conversation of the parties, that the words “De_Witt guarantees to return the boat without damage,” were intended to cover injuries to both cargo and boat.
    Appeal by the plaintiff, James Gr. McKee, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Washington on the 2d day of October, 1896, upon the dismissal of the complaint directed by the court after a trial at a Trial Term of the Supreme Court held in and for the county of Washington.' .
    ■ ■ The plaintiff sought to recover, damages for injury done to a part of a cargo of potatoes upon the.:boát Quebec, which was sunk at Blackwell’s island, whithei' it had., proceeded in order to deliver some potatoes to the defendant, under an agreement, of which the following is a copy:
    “Hew Yobk, January 23c?, 1895.
    “ Received this day from C. F, De Witt, one hundred dollars ($100) on account of Peerless potatoes on the boat Quebec, sold to" said De Witt this day for one dollar and fifty cents ($1.50) per bbl. of 172 lbs., delivered at Blackwell’s Island, De Witt guarantees to return the boat without damage, McKee to pay towing.
    “JAMES G. McKEE- “ CHARLES F. DE WITT.” "
    
      Thomas W. McArthur, for the appellant.
    
      Edgar T. Brackett, for the respondent.
   Landon, J.

The' written contract is so "meagre in its .statements that it cannot be understood without understanding the situation as it existed at the time it was given. Parol evidence was, therefore, proper to give ■ the court such an understanding of the situation as. would . enable it to understand the contract, The evidence given by the plaintiff was to the effect that the plaintiff had a cargo- of potatoes upon the canal boat Quebec, lying at pier 6, East river; that the . defendant proposed to buy 1,169 barrels of the potatoes, at one dollar and fifty cents per barrel, if plaintiff would deliver them at Blackwell’s island. . The plaintiff owned no. interest in the boat.' . [The plaintiff said to the defendant that Blackwell’s island was a hazardous place to take the boat to. The defendant said it was perfectly safe. The plaintiff said,. “ If It is, of course you will not have any objection to guaranteeing that I would not sustain any loss to my boat or cargo in going there,” to which the defendant said that he was willing to stand -between, the plaintiff and any loss he might sustain, by taking the boat there] ; and then this contract was entered into. The boat was taken to Blackwell’s island, the 1,169 barrels of potatoes delivered to the defendant there, but the boat was sunk by ice and heavy waves while at the island, and the unsold part of the carge damaged. With this explanation of the situation, it is possible that the words, “ De Witt guarantees to return the boat without damage,” meant damage to boat and cargo.

The evidence in brackets was afterwards stricken out by the court' upon the motion of the defendant. Such evidence does not vary or change the contract, but helps us to understand it. Where an ambiguity in a written contract is raised by extrinsic evidence, extrinsic evidence' is admissible to solve it. (Bowman v. Agricultural Insurance Co., 59 N. Y. 521; Streppone v. Lennon, 143 id. 626; Tilden v. Tilden, 8 App. Div. 99.)

The court, therefore, erred in striking out the evidence of the conversation between the parties as to the damage to be guaranteed against. Unless the guaranty covered the cargo it was of no value to the plaintiff, and, under the circumstances, the parties may have , intended the word “ damage ” to apply to the cargo. The court should give the language the meaning in which the parties used it, especially when it is such as the language itself might bear.

After the contract was made, and before the boat was taken to* Blackwell’s island, the defendant said to the plaintiff that he was in ■ a hurry to have the potatoes delivered. The plaintiff said he did not want to take the boat there without first having it insured. The defendant answered: “There is no necessity of'anything of that kind any way; I know it is a perfectly safe place, and I stand between you and any harm in going there, or any loss you may sustain in going there.” This evidence was competent to show the practical construction which the defendant placed upon the contract, and upon which it might be found that the plaintiff relied in going to Blackwell’s island, without first securing the insurance.

The judgment should be reversed, new trial granted, costs to> abide the event.

All concurred.

Judgment reversed and new trial granted, costs to abide the event.  