The agreement under seal provided that the car wheels should be made of the best quality of Babbitt’s metal. There was conflicting evidence as to the meaning of the words “ best quality of Babbitt’s metal,” as used in the contract, and the court, in effect, instructed the jury that it was competent for them to find that the parties adopted the metal of which the wheels of a certain car, which was before them for some purpose, were composed, as the best Babbitt’s metal intended by the contract.

It is objected that, if there was such ambiguity disclosed in the language as rendered it competent to show that the parties agreed upon and adopted a specimen of metal to be taken as the best Babbitt’s metal of the contract, yet there was no evidence that the parties did so, and therefore instructions that the jury might find that they did were erroneous.

The contract itself provided that “ said cars to be made according to the style shown in a sketch or plan marked A, hereto annexed.” Then follow minute specifications as to the material and construction of the car and its different parts, that relating to the wheels being that “ the wheels are to be three inches in diameter, and made of best quality of Babbitt’s metal and nickel-plated.” The contract was dated July 10. Under date of July 30, this indorsement was made upon it: *200<£ The plan described in the within contract, marked A, is omitted by consent of both parties, and for further description, for the form and style referred to, is shown in the style and form of the cars now in process of manufacture by Thomas F. McGann for the Osgood Cash Car Company, which style was referred to in said plan.”

There was evidence tending to prove that, when the indorsement was made, a car referred to in it was before the parties. The reference to the car in the indorsement is as a substitute for the plan mentioned in the contract, and is expressly limited to the purpose of showing the style and form of the car, and a construction of the writings that by them the parties adopted the material of the wheel of the car as the material of the wheel of the contract would be clearly erroneous.

The other evidence relating to the point is, in substance, as follows. Morey and Smith contracted to make the wheels for McGann. McGann testified that, before the contract was made, Osgood introduced him to Morey and Smith, saying that he wanted to introduce him “ to the concern who had made wheels for him, and who, he thought, were the proper persons ”; that Osgood said, on introducing him to Smith, “ You know just what I want, Mr. Smith, and I want you to go to work and make wheels for this man,” and told Smith that he wanted them made of the best Babbitt’s metal, or something a little harder than the wheels of a car which was before them; and that Smith and Osgood came to his place some time in September, after the contract was signed, and Osgood said to Smith, “ Mr. Smith, are these wheels made of the best Babbitt metal ? ” to which Smith replied, “ They are of the very best.” It may be assumed that the wheels referred to were those of the car mentioned in the indorsement. Another witness testified that some time in July or August he heard Osgood, in McGann’s presence, while Osgood was holding a cash car wheel in his hand, ask Smith, “ Is this the best Babbitt metal? ” and that Smith said, “Yes, it is.”

This we understand to be all the evidence which it can be claimed tends to prove that the parties agreed that the “ best quality of Babbitt’s metal ” mentioned in the contract should be taken to be the metal of which the wheels of the cars referred to in the indorsement were made, or adopted the metal of those *201wheels as the metal of the contract. Taking this evidence, without regarding the evidence tending to contradict and control it, we think it did not raise or present the particular issue which was submitted upon it to the jury, and that the instructions to the jury were erroneous.

Exceptions sustained.