By the Gourt,
Leonard, J.The question here involved is the construction and meaning of a contract between the *356parties for the manufacture of meerschaums, or retorts, used in extracting oil from bituminous coal. The defendants insist that the contract gives them the option as to the number to be built, while the plaintiff insists on the opposite rule.
[New York General Term, February 3, 1862.Ingraham, Leonard and Olerlce, Justices.]
The defendants invited estimates for twenty-six or twenty-seven meerschaums, to be delivered in certain numbers at certain dates. They then add, “any number at our option.” The plaintiff offered in writing to build twenty-six or" twenty-seven of brick for $1650 each, or of iron at $1850 each. He then adds this clause: “All the above to be in accordance with 1st plan and specification, dated 4th inst., and to be delivered at such dates and in such numbers as you may specify within the next 65 days.”
We think the plaintiff here proposes a variance from the terms named by the defendants, in respect to the option. The offer is to build the whole number mentioned, giving the defendants sixty-five days within which they are required to specify the dates and numbers of the deliveries. To this proposition, made by the plaintiff, the defendants reply in writing on the same day, “ and assent to the proposition and terms therein made.” The defendants also add, “the above to be 27 meerschaums.”
This was an agreement for twenty-seven meerschaums. The variation in the contract proposed by the plaintiff was assented to by the defendants.
The plaintiff was entitled to recover the damages which he had sustained on the breach of the contract by the defendants in refusing to take the whole number agreed on.
The judgment and report must be set aside, and the case sent back to the referee for a new trial, with costs to abide the event. The evidence already taken to stand, and each party to be at liberty to offer such further evidence as they may think proper.