WALKER, Circuit Judge
(after stating the facts as above). No evidence adduced supported the averments of the third above mentioned plea. Uncontradicted evidence showed that defendant received and accepted part of the sugar called for by the report of sale dated May 27, and for part of the sugar so accepted paid the price stated in that instrument, “28% net cash f. o. b. refinery.” Evidently that plea was based upon the provision of the Mississippi statute of frauds which in effect requires, as to a contract for the sale of personal property, goods, wares, or merchandise for the price of $50 or upwards, some note or memorandum in writing of the bargain to be made and signed by the party to be charged or his agent thereunto lawfully authorized, “unless the buyer shall receive part of the personal property, goods, wares, and merchandise, or shall actually pay or secure the purchase money, or part thereof.” Code of Mississippi of 1906, § 4779. It may be assumed, without being decided, that that statute applied to the transaction in question, though the contract was to be filled in the state of Louisiana, by delivery of the sugar ordered f. o. b. the refinery of the plaintiff, which is located at Reserve, La.
In the trial defendant raised no question as to its order for sugar given to the brokers on May 27, otherwise than by contending that it so gave the order as to make the price stated, 28% cents a pound, subject to a discount of 2 per cent, in the event of payment within seven days from date of invoice. It is apparent that plaintiff’s above set out letter of May 31 was written soon after its receipt of the report of sale made by the brokers. That letter indicated that the terms of that order were not the same as those of a previous unfilled order, by referring to “the 400 bags due you for shipment in June at 16%, less two, and the 600 bags at 28% cents as per order given Hayward & Scott on the 27th.” The defendant replied to that letter without controverting its statement of terms of sale. Defendant’s reference in its letter of July 10 to “your confirmation on this sale” amounted to embodying in that letter the instrument so referred to, which contained the statements: “Terms net cash;” “28% net cash f. o. b. refinery.” The contract was taken out of the statute of frauds by defendant’s recognition above its signature of the written statement of terms of the sale, and by its acceptance of part of the sugar ordered and payment therefor in pursuance of the terms so stated. Bibb v. Allen, 149 U. S. 481, 13 Sup. Ct. 950, 37 L. Ed. 819; Garfield v. Paris, 96 U. S. 557, 24 L. Ed. 821.
In its letter of July 10 defendant did not intimate that, before the shipment of June 29 was made, it had not assented to the terms stated in the brokers’ report of sale, did not contend that it had not con[364]*364tracted as stated in plaintiffs letter of July 9, and did not offer any explanation of its acceptance of the sugar shipped on June 29 after being informed by the invoice sent the same day that that sugar was sold at “281/2 cents f. o. b. F. T. Y.' Net seven days from date of invoice.” Without denying thé existence of the contract as it was stated by plaintiff, defendant announced its purpose not to accept future shipments unless it was allowed the cash discount thereon. Defendant’s letter evidences a purpose to cancel an unfilled part of its order without claiming that the order as transmitted by the brokers to plaintiff .was not given by defendant, or that a right to cancel was, or was intended to be, stipulated for. The threat not to accept future shipments unless the 2 per cent, discount was allowed was based, not on a claim that defendant’s order for the sugar in question was so given as to entitle it to such discount, but on the circumstance that such discount was allowed by the terms made on former purchases.
The mere fact that one who has ordered goods attempts, before their delivery, to get the seller to consent to terms allowed on former sales, by no means proves or tends to prove that the former understood at any time that he was to be entitled to have such terms applied to the sale in question. The defendant, without controverting the statement in plaintiff’s letter of July 13 of the terms of the contract of May 27, on July 14 sent its check for the amount of the 2 per cent, deduction previously made from the invoice price. Under the circumstances, that action amounted to an admission by defendant of the correctness of the position taken by the plaintiff. In the trial for the first time defendant contended that, when it gave the order for the sugar on May 27, it understood that the terms were to be different from those stated in the written report of sale made by the brokers, and that it was to be entitled to a 2 per cent, discount in case of payment within seven days from the date of an invoice, with the result that as to the terms of sale the. minds of buyer and seller did not meet, and that the former was not obligated to pay for sugar not accepted by it.
It was contended in, behalf of defendant that its retention of the brokers’ report of sale, without raising any question as to that instrument’s statement of the terms, did not prove defendant’s acquiescence, because its manager did not see that instrument until long after its receipt by defendant, and because the circumstance that the report of sale was made on the brokers’ form, instead of on plaintiff’s printed form, kept it from being treated by defendant as having any significance or effect or as calling for a dissent from its statement of terms in a respect wherein such statement might be claimed to be incorrect. It is not material to inquire whether defendant’s silence as to the report of sale did or did not mean consent prior to that instrument coming to the notice of Bolster, as when it did come to his notice after plaintiff had- shipped half of the sugar ordered and had pointedly invoked the report’s statement of the terms of the contract, he made no claim in behalf of defendant that that instrument misstáted the contract-in any respect; but, on ,the contrary, defendant, by complying' with the terms, stated in the, report of sale, admitted that they were binding on it. .There was, no, evidence to, warrant a finding that, the circumstance that the brokers made the triplicate written’ memorandum of the terms [365]*365of sale on forms of their own, instead of using plaintiff’s printed forms, kept the instrument sent by them to defendant from serving the purpose of putting defendant to its election between giving or withholding its assent to the terms therein stated.
In the circumstances attending the initial correspondence between the parties in reference to the order given on May 27, it was apparent that plaintiff was basing its action on the order as transmitted to it by the brokers. Defendant then knew, or had readily accessible means of knowing, the contents of the rep'ort of sale made by the brokers. It seems that defendant, knowing that plaintiff was relying on the order as reported by the brokers, and either knowing the contents of the report of sale made by the brokers, or neglecting to acquire that knowledge, though it easily coüld have acquired it, could not fail to question the correctness of the brokers’ report of sale while plaintiff was changing its position by doing what that instrument’s terms required of it, and remain free to do so after plaintiff had acted on the faith of the order as reported by the brokers.
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WALKER, Circuit Judge
(after stating the facts as above). No evidence adduced supported the averments of the third above mentioned plea. Uncontradicted evidence showed that defendant received and accepted part of the sugar called for by the report of sale dated May 27, and for part of the sugar so accepted paid the price stated in that instrument, “28% net cash f. o. b. refinery.” Evidently that plea was based upon the provision of the Mississippi statute of frauds which in effect requires, as to a contract for the sale of personal property, goods, wares, or merchandise for the price of $50 or upwards, some note or memorandum in writing of the bargain to be made and signed by the party to be charged or his agent thereunto lawfully authorized, “unless the buyer shall receive part of the personal property, goods, wares, and merchandise, or shall actually pay or secure the purchase money, or part thereof.” Code of Mississippi of 1906, § 4779. It may be assumed, without being decided, that that statute applied to the transaction in question, though the contract was to be filled in the state of Louisiana, by delivery of the sugar ordered f. o. b. the refinery of the plaintiff, which is located at Reserve, La.
In the trial defendant raised no question as to its order for sugar given to the brokers on May 27, otherwise than by contending that it so gave the order as to make the price stated, 28% cents a pound, subject to a discount of 2 per cent, in the event of payment within seven days from date of invoice. It is apparent that plaintiff’s above set out letter of May 31 was written soon after its receipt of the report of sale made by the brokers. That letter indicated that the terms of that order were not the same as those of a previous unfilled order, by referring to “the 400 bags due you for shipment in June at 16%, less two, and the 600 bags at 28% cents as per order given Hayward & Scott on the 27th.” The defendant replied to that letter without controverting its statement of terms of sale. Defendant’s reference in its letter of July 10 to “your confirmation on this sale” amounted to embodying in that letter the instrument so referred to, which contained the statements: “Terms net cash;” “28% net cash f. o. b. refinery.” The contract was taken out of the statute of frauds by defendant’s recognition above its signature of the written statement of terms of the sale, and by its acceptance of part of the sugar ordered and payment therefor in pursuance of the terms so stated. Bibb v. Allen, 149 U. S. 481, 13 Sup. Ct. 950, 37 L. Ed. 819; Garfield v. Paris, 96 U. S. 557, 24 L. Ed. 821.
In its letter of July 10 defendant did not intimate that, before the shipment of June 29 was made, it had not assented to the terms stated in the brokers’ report of sale, did not contend that it had not con[364]*364tracted as stated in plaintiffs letter of July 9, and did not offer any explanation of its acceptance of the sugar shipped on June 29 after being informed by the invoice sent the same day that that sugar was sold at “281/2 cents f. o. b. F. T. Y.' Net seven days from date of invoice.” Without denying thé existence of the contract as it was stated by plaintiff, defendant announced its purpose not to accept future shipments unless it was allowed the cash discount thereon. Defendant’s letter evidences a purpose to cancel an unfilled part of its order without claiming that the order as transmitted by the brokers to plaintiff .was not given by defendant, or that a right to cancel was, or was intended to be, stipulated for. The threat not to accept future shipments unless the 2 per cent, discount was allowed was based, not on a claim that defendant’s order for the sugar in question was so given as to entitle it to such discount, but on the circumstance that such discount was allowed by the terms made on former purchases.
The mere fact that one who has ordered goods attempts, before their delivery, to get the seller to consent to terms allowed on former sales, by no means proves or tends to prove that the former understood at any time that he was to be entitled to have such terms applied to the sale in question. The defendant, without controverting the statement in plaintiff’s letter of July 13 of the terms of the contract of May 27, on July 14 sent its check for the amount of the 2 per cent, deduction previously made from the invoice price. Under the circumstances, that action amounted to an admission by defendant of the correctness of the position taken by the plaintiff. In the trial for the first time defendant contended that, when it gave the order for the sugar on May 27, it understood that the terms were to be different from those stated in the written report of sale made by the brokers, and that it was to be entitled to a 2 per cent, discount in case of payment within seven days from the date of an invoice, with the result that as to the terms of sale the. minds of buyer and seller did not meet, and that the former was not obligated to pay for sugar not accepted by it.
It was contended in, behalf of defendant that its retention of the brokers’ report of sale, without raising any question as to that instrument’s statement of the terms, did not prove defendant’s acquiescence, because its manager did not see that instrument until long after its receipt by defendant, and because the circumstance that the report of sale was made on the brokers’ form, instead of on plaintiff’s printed form, kept it from being treated by defendant as having any significance or effect or as calling for a dissent from its statement of terms in a respect wherein such statement might be claimed to be incorrect. It is not material to inquire whether defendant’s silence as to the report of sale did or did not mean consent prior to that instrument coming to the notice of Bolster, as when it did come to his notice after plaintiff had- shipped half of the sugar ordered and had pointedly invoked the report’s statement of the terms of the contract, he made no claim in behalf of defendant that that instrument misstáted the contract-in any respect; but, on ,the contrary, defendant, by complying' with the terms, stated in the, report of sale, admitted that they were binding on it. .There was, no, evidence to, warrant a finding that, the circumstance that the brokers made the triplicate written’ memorandum of the terms [365]*365of sale on forms of their own, instead of using plaintiff’s printed forms, kept the instrument sent by them to defendant from serving the purpose of putting defendant to its election between giving or withholding its assent to the terms therein stated.
In the circumstances attending the initial correspondence between the parties in reference to the order given on May 27, it was apparent that plaintiff was basing its action on the order as transmitted to it by the brokers. Defendant then knew, or had readily accessible means of knowing, the contents of the rep'ort of sale made by the brokers. It seems that defendant, knowing that plaintiff was relying on the order as reported by the brokers, and either knowing the contents of the report of sale made by the brokers, or neglecting to acquire that knowledge, though it easily coüld have acquired it, could not fail to question the correctness of the brokers’ report of sale while plaintiff was changing its position by doing what that instrument’s terms required of it, and remain free to do so after plaintiff had acted on the faith of the order as reported by the brokers.
The result to which the foregoing consideratiqns point may be based on another and different ground. Prior to the bringing of the suit the defendant took no position in reference to complying or not complying with the terms of the order given through the brokers on May 27, otherwise than by giving notice that it would not accept future shipments unless it was allowed the cash discount thereon, and based its announced purpose not to comply with the terms of the order as.reported by the brokers on the sole ground that the terms of sale stated therein were not the terms of sale on former purchases, and that it had received no notice of any change in plaintiff’s terms, except its confirmation on this sale. The defendant, haying, before the suit was brought, based its refusal to comply with the terms of payment stated in the brokers’ report of sale on the untenable ground that those terms differed from the terms on former purchases, cannot properly be permitted, after the suit was brought, to set up another and different defense. It is estopped from so changing its ground.
“Where a party gives a reason for his conduct and. decision touching anything involved in a controversy, he cannot, after litigation has begun, change his ground, and put his conduct upon another and a different consideration.” Ohio & Mississippi Valley R. R. Co. v. McCarthy, 96 U. S. 258, 24 L. Ed. 693; Luckenbach v. Grace (C. C. A.) 267 Fed. 676; Board of Trustees v. Spitzer (D. C.) 255 Fed. 136.
It is apparent that a buyer has taken different and inconsistent positions when, before being sued, he based his threatened or actual refusal to accept goods on the terms of payment being different from those allowed on a' former sale, without claiming that he was ntit bound by the order for the goods as transmitted through brokers, and, after being sued on such order, sought to base his failure to comply with its terms on the ground that he never gave or assented to that order.
The conclusion is that under the pleadings and the evidence adduced the plaintiff was entitled to recover, and. that the court erred in refusing to give the above mentioned' requested charge to the jury.’ Because of that error, the judgment is reversed.