Mago v. Hanssel

For the purposes of this motion, which is equivalent to a demurrer, we deem the pleading sufficient. The word “ damage,” however, is ambiguous and it may be that upon the trial extrinsic evidence would be admissible to show the intent of the parties to use the word as including total destruction. Evidence on the trial would also probably disclose which party was responsible for the language used, and to that extent aid construction. All concur, except Sears, J., who dissents and votes for reversal on the law on the ground that under the terms of the charter party as a whole, total loss is to be included within the word “ damage.” Present — Hubbs, P. J., Clark, Sears, Crouch and Sawyer, JJ. Order affirmed, with ten dollars costs and disbursements.