¶1delivered tbe opinion of tbe court.
¶2Wm. Henderson, a merchant of New Orleans, La., sued Ormond, in tbe circuit court of Lauderdale county, for $230.98, a balance due of tbe purchase price of twenty-five barrels of granulated sugar, shipped to him November 18, 1895.
¶3It appeared in evidence that Ormond, at Meridian, Miss., agreed to buy of Hester, a broker at that place, ten barrels of sugar, supposing that Hester had the sugar in hand. Hester having no sugar, and being unable to buy of Henderson on his own account, wired Henderson to ship Ormond twenty-five barrels of sugar, at the lowest market price. Henderson at once shipped the twenty-five barrels of sugar to Ormond, sent him an invoice of the purchase, and a bill of lading of the same. Ormond frankly states that when he got the invoice and bill of lading, he saw that Hester had no sugar, and that the twenty-five barrels of sugar sent by Henderson were intended as a sale from Henderson to him, but as he wanted only ten barrels, he'received in his store only ten barrels, and turned over the bill of lading for the remaining fifteen barrels to Hester, to be disposed of by him, supposing Hester to be Henderson’s agent. In such supposition Ormond was mistaken. When the debt fell due, Ormond, being drawn upon for the purchase price of the twenty-five barrels of sugar, remitted Henderson for the ten barrels actually used, and as to the price of the fifteen barrels turned over by him to Hester, he set up the above recited facts as a defense. The court,, however, directed a verdict for the plaintiff.
¶4When Ormond learned of the mistake made by Henderson in shipping to him the twenty-five barrels of sugar, which he states he did learn when he received the account of the sale and the bill of lading, it was competent for him to refuse to accept the sugar, but he could not accept a part, and reject a part, without Henderson’s consent.
¶5Where a mistake is made in reference to the quantity of goods, the buyer must accept all, or refuse tó accept- any, and *36give the seller notice of the mistake, and that the goods are subject to his order. lie cannot deal with the goods as his own, as Ormond certainly did in this case, without rendering himself liable for the purchase price. Benjamin on Sales, 160.
¶6The judgment is affirmed.