Legal Question in Consumer Law in New York

I signed a contract with a fence company and gave a downpayment. The contract states that I will obtain the necessary permit from my Town; however, the fence salesman said he was eager for the work and would do me a favor by obtaining the permit. He was advised that only the homeowner can obtain the permit. I went to get the permit and was advised that I need a variance first (I am on a corner) and then I could apply for the pemit. In order to get the variance I had to provide the town with the proposed fence line drawn on my survey with the property staked. The Town would inspect the property before and after the job. My property was already staked (from the original survey) but the fence company advised me that assisting me in getting the variance was not their job and they refused to return. They told me to hire a surveyor. I contracted with a second company which provided the Town with the necessary "marked" survey, I obtained the variance, I obtained the permit, the second company installed the fence.

The first company is refusing to return my deposit stating that I broke the contract by not obtaining the permit. I am arguing that they broke the contract when, contrary to the contract, they attempted to obtain the permit and that the contract did not address the variance, which was also necessary.

It is also my argument that I signed a contract which would never be honored by the fence company because I could not get the variance without their cooperation.

I am also arguing that there was no valid contract because there was no meeting of the minds.

I'd appreciate an opinion.

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