Upon the record now before the court,, I am of the opinion that the charter party, in the absence of any proof in explanation of the same, was limited to a voyage to transport the United States Senators and Representatives to Cuba and return. The terms of the . *27charter party, taken in connection with the evidence given in - the case, seem clearly to show that the contemplated use of the yacht was for that purpose, it being assumed at the time of the execution of the instrument that the voyage would cover a period of six weeks, but a contingency was contemplated in which it might be extended beyond such period, and in order to cover such- contingency, provision was made for an extension. The terms of the charter party securing the latter right are quite ambiguous and may well be held void for uncertainty. As, however, the parties clearly contemplated that there might be a contingency requiring an extention and the language securing it being ambiguous, I agree with Mr. Justice Ingraham that a case was presented where parol proof was proper in explanation of the written instrument. Proof of this character was offered by the defendant and was excluded. It ought to- have been received. Upon the present record, however, it clearly appears that the purpose of the voyage had ended by the death of Senator Thurston’s wife, as early as the nineteenth day of April. The voyage for such purpose, was never thereafter resumed, nor was it contemplated that it would be ; consequently, upon the evidence as presently existing, it is clear that the purpose for which the boat was chartered, both under the charter and the terms of the extension, had come to an end. When, therefore, the plaintiff made demand for a return of the boat on the twenty-sixth day of April, it became the duty of the defendant to comply with such demand, and his failure so to do constituted a conversion of the boat. As we have before observed, the facts upon this subject are without dispute. When, the notice was given to return the boat she was lying at anchor in the-harbor of Key West, in charge of her captain and crew. bio attempt, however, was made to" comply with the demand to return the yacht, the defendant standing upon his claimed rights under the charter party. The facts, therefore, being 'without dispute, the question of conversion became one of law for determination by the court. (Laporte v. Wells, Fargo & Co.’s Express, 23 App. Div. 267; Wright v. Bank of Metropolis, 110 N. Y. 237.) The court upon the trial, in the first instance, charged the jury that under the charter party the defendant was not at liberty to retain the possession of the boat after the expiration of the extension of the charter party and after a demand for *28her" return was made. This was a correct statement of the law, but the court, in addition, submitted to the jury the question as to whether the defendant should have complied with the demand and that he was entitled to a reasonable time to make compliance therewith. The submission of the latter question we think was error. Had the defendant attempted- compliance with the demand to return the boat, and had failed to deliver her out of commission on or before the twenty-sixth of April, undoubtedly all of the circumstances attending the attempt to make Compliance with, the demand might have presented.» question of fact for determination by the jury as bearing upon the subject of the conversion, but the defendant made no such attempt; he stood upon a claim of legal right to retain the custody- and possession of the boat under the terms of the charter party -; consequently, when the court reached the- conclusion that he was bound to deliver the boat to the defendant on the twenty-sixth of April, if he might with reasonable diligence accomplish a delivery within that period, it became its duty to hold,, as matter of law, that the defendant was guilty of a conversion, for, under such circumstances, he was not at all protected by any claimed right under .the terms of the charter party. The conversion was complete and the question became alone one for the assessment of damages. Counsel for the plaintiff also requested the court to charge that, if there was failure -to deliver the boat ■ at any time prior to the commencement of the action, the defendant was guilty of a conversion. The court, when first so requested, refused so to hold or charge. It is clear that the request was correct. The defendant was bound to return the boat in compliance with the demand, and if there was anything which excused him from delivering her on the twenty-sixth of April, it was certainly not a continuing excuse, and plaintiff’s claim of conversion clearly existed prior to .the bringing of the action, if it had not existed on the twenty-sixth of April, The court, however, subsequently submitted this question to the jury in the form of a special finding as to when the conversion, if any such there was, took place. The jury, however, failed to make answer:- to any of the special questions submitted, except to answer that the plaintiff was not entitled to the possession of the yacht on April 26, 1898, and upon this finding the court directed a verdict. It is clear, therefore, that the jury did not foi*29low the directions of the court, nor did the court adhere to its ruling as to the law of the case, as it finally disposed of the case upon the sole question as to whether the conversion took place on the twenty-sixth of April. For these reasons we think the judgment must be reversed.
It was further claimed by the defendant that the proof established that the plaintiff subsequently resumed possession of the yacht, but the court correctly held that, if it so appeared, it would not defeat the cause of action, but bore upon the measure of damages. This ruling, we .think, was proper, and that, in this respect, the court charged the correct rule respecting the weight to be attached to the resumption of-possession, assuming it to have been had.
I think the judgment should, therefore, be reversed, and a new trial granted, with costs to the appellant to abide the event.
Patterson and McLaughlin, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.