Plaintiff contends that the trial court was wrong in holding' that the changes made in the original order made a material alteration in the written form of contract of April 2d. . The testimony, however, amply supports the finding of the trial court to the effect that the clause “Firm at opening prices when named,” so stricken out, was understood to mean and refer to a general market *529price in the California fruit market as it should be established and announced in the usual manner in the summer of 1920, and that the substituted clause was intended to and did mean that the plaintiff as seller had the right to fix and designate such price, terms, and conditions as it should.elect, and which would or might be other than those fixed in the general market.

Clearly a change .whereby the buyer would be bound to pay, any price which the seller himself might fix for his goods and bound by any terms and conditions which the seller might at his election prescribe, is the making of a substantially different contract from the one to which defendant assented by his signing of the order of April 2d, wherein the price to be paid was that to be fixed by others than the seller. That such was a material change is further shown by plaintiff’s continued insistence upon it.

The plaintiff also urges that the defendant waived any objection it might have had to such alterations or is estopped from asserting any defense thereunder by reason of its having continued to retain possession of the duplicate copy returned to it by plaintiff after such changes had -been made. The uncontradicted testimony, however, is that the defendant immediately upon receipt of such altered contract notified the salesman through whom the order had been obtained that such alteration was not accepted by it and that at the suggestion of suclTsalesman the altered form t>f contract was retained. And it further appears without dispute that the plaintiff forwarded to defendant for signature a new form of contract for the same order, also containing the same changes that had been so made in the original order, and that upon receipt of such new contract the defendant promptly notified plaintiff that it would not accept such or recognize any obligation whatsoever.

The judgment must therefore be affirmed.

By the Court. — Judgment affirmed.