The contract between the parties remains substantially as it appeared when the case was before the general term on a former occasion (36 Barb. R. 354, 356). The specification or writing whereby the gas company invite proposals, is rather indefinite as to the option which they claim. Still .1 incline to the opinion that the option as expressed in the said invitation, reserves the right to increase and not to diminish the whole number of meerschaums to be’manufactured. The gas company name five dates or times for the delivery of a definite number, amounting in all to twenty-seven, and then invite an estimate for “ the same number of iron meerschaums, to be delivered as above.” There is nothing to indicate that they wished an option to take a less number. Perhaps it was designed to secure an option to change the number deliverable at the several dates specified. Whatever meaning the gas company may have intended tp attach to the option, the plaintiff in his answer makes it specific and certain.
He makes his estimate for twenty-six or twenty-seven meerschaums of the two different descriptions required, and then adds, “ all the above to be in accordance as first plan and specifications, and to be delivered at such dates and in-such numbers as you may specify within the next sixty-five days.”
Here the option relates only to the dates and numbers of tho several deliveries. There is no option as to the whole number, except that it is not stated whether there shall be twenty-six or twenty-seven. The defendants assent to the proposition and terms named. All the other questions related to the facts as found by the referee, so far as anything was argued before us. The evidence sustains the facts as *38found, in my opinion. The chief question was whether the parties agreed to cancel or abandon this contract. The agents of the gas company testify to facts tending to show that the plaintiff consented to cancel or abandon the contract, in consideration that the company would give him whatever other work they might have to be done, and that the company furnished the plaintiff the work.
The plaintiff puts an entirely different construction upon the new agreement. According to his evidence, there were some propositions, never amounting, however, to an agreement, to change the written contract. iNo new agreement was ever reduced to writing; and the old contract in writing was never surrendered, although the plaintiff was asked to do so.
This last fact has a strong bearing on the subject. If a new agreement had been made, it seems most probable that the old one in writing would have been actually canceled or surrendered.
The rule of damages is correct.
The judgment should be affirmed, with costs.