The bill of particulars stated an oral agreement, made on or about September first, to lease for one year from September first. The proof showed that on August thirtieth there'was an offer to lease from September first for a long lease. Everything was agreed upon but the term. There was no contract on August thirtieth. Then for several days the parties negotiated about the term, that being the only matter in dispute, and finally about September fourth or fifth (two periods of several days after August thirtieth) the plaintiff agreed orally to take a one-year lease and the landlord said “ all right.” We think there was no material variance from the bill of particulars as to time, and that is the only error urged The correct measure of damage is the value, if any, of the lease, which value would be created almost entirely by the excess, if any, of rental value over the agreed rental.
Judgment reversed and new trial ordered, with thirty dollars costs to appellant to abide the event.
All concur; present, Guy, Bijur and Mullan, JJ