Tbe defendant lives in Gaston County; tbe plaintiff in Mecklenburg. On 11 April, 1941, tbe defendant made an offer in writing to deliver to tbe plaintiff, at any time witbin thirty days, tbe entire capital stock of Lola Mills, Inc., “if you pay me $150,000.00 cash,” subject to prior sale in tbe meantime. It is in evidence tbat witbin tbe time specified, to wit, on 28 April, and while tbe offer was still outstanding, tbe plaintiff accepted tbe offer, and so notified tbe defendant. On tbe day following, tbe defendant wrote tbe plaintiff tbat be did not feel obligated to deliver tbe stock because “On Thursday of last week I committed myself to another party. I am, therefore, not in position to deliver tbe stock to you or your customer.” It turned out on tbe bearing, however, tbat tbe defendant bad “committed” himself without consideration to bis son Hubert on 29 April, after receiving tbe plaintiff’s notice of acceptance.
Tbe case, tben, turns on whether tbe payment or tender of $150,000.00 in cash was essential to tbe acceptance of defendant’s offer. Tbe defendant did not so understand bis offer. Neither did tbe plaintiff. Samonds v. Cloninger, 189 N. C., 610, 127 S. E., 706; Rucker v. Sanders, 182 N. C., 607, 109 S. E., 857. Tbe first time this position was taken was when tbe defendant filed bis answer. Tbe point seems to have been an afterthought, suggested, no doubt, by tbe pressure and exigencies of tbe case.
“Where a party gives a reason for bis conduct and decision touching anything involved in a controversy, be cannot, after litigation has begun, change bis ground, and put bis conduct upon another and different consideration. He is not permitted thus to mend bis bold. He is estopped from doing it by a settled principle of law.” Railway Co. v. McCarthy, 96 U. S., 258.
It was not witbin tbe contemplation of tbe parties tbat tbe plaintiff should first pay tbe 'money and tben trust to tbe defendant to deliver tbe stock. This would leave tbe plaintiff unprotected. Lennon v. Habit, 216 N. C., 141, 4 S. E. (2d), 339. Tbe payment of tbe purchase price *500and the delivery of tbe stock were to take place simultaneously or as concurrent acts. Such was tbe understanding of botb parties. Cole v. Fibre Co., 200 N. C., 484, 157 S. E., 857. Tbe case is not far different from Ruclcer v. Sanders, supra, where, on facts in principle quite similar, it was beld that a contract resulted from tbe notice of acceptance, duly communicated, and that tbe payment of tbe money belonged to tbe performance of' tbe contract.
In Skinner v. Stone, 144 Ark., 353, 222 S. W., 360, 11 A. L. R., 808, tbe appellant, in response to an inquiry, wrote the' appellee, “I will sell tbe land and timber, 120 acres, for $2,500 cash.” Tbe appellee replied by mail, “Your price ... is rather high, but I am accepting your offer, to take $2,500 cash for this land . . . attach draft to deed and ... I will take care of same.” Tbe Court beld tbe acceptance to be unconditional, and tbe request to “attach draft to deed,” etc., a mere suggestion to expedite tbe consummation of tbe agreement.
It is generally understood that where an offer to sell for cash is accepted, the payment of tbe money and tbe delivery of tbe property are to take place simultaneously or as concurrent acts. Northwestern Iron Co. v. Meade, 21 Wis., 474, 94 Am. Dec., 557; Hughes v. Knott, 138 N. C., 105, 50 S. E., 586, 3 Ann. Cas., 903; Blalock v. Clark, 133 N. C., 306, 45 S. E., 642; S. c., 137 N. C., 140, 49 S. E., 88. Indeed, in respect of tbe manner of executing tbe contract, it has been beld that tbe general custom in tbe business or trade may be considered in arriving at tbe intention of tbe parties. Hughes v. Knott, supra; Annotation, 11 A. L. R., 811.
It should be remembered we are here dealing with tbe acceptance of an offer, and not with tbe exercise of an option. Johnson v. Ins. Co., 221 N. C., 441; Gaylord v. McCoy, 161 N. C., 685, 77 S. E., 959. Tbe usual method of accepting an offer is by notice of acceptance communicated to tbe offerer. Hall v. Jones, 164 N. C., 199, 80 S. E., 228; Anson on Contracts, p. 22, et seq. It is, true, tbe acceptance must be in tbe terms of tbe offer, but acceptance and performance are not to be confused. Rucker v. Sanders, supra; 12 Am. Jur., 537. Tbe one deals with tbe making of tbe contract; tbe other with its execution. Blalock v. Clark, supra.
“An offer to buy or sell becomes a binding agreement when tbe person to whom tbe offer is made accepts it and communicates bis acceptance.” Owens v. Wright, 161 N. C., 127, 76 S. E., 735. Of course, following tbe consummation of a contract, tbe plaintiff must show that be offered to perform bis part of tbe agreement, or that such offer was rendered unnecessary by tbe refusal of tbe defendant to comply, before an action will lie, either for its breach or for specific performance. Northwestern *501Iron Co. v. Meade, supra; Gaylord v. McGoy, supra. But here the first issue was addressed solely to the matter of acceptance or the consummation of the contract.
In arriving at the expressed intent — the real purpose of every writing — regard must be had to the nature of the offer, the circumstances of its making, and the objects in mind or the end in view. Simmons v. Groom, 167 N. C., 271, 83 S. E., 471. “The words employed, if capable of more than one meaning, are to be given that meaning which it is apparent the parties intended them to have.” Beach on Modern Law Contracts, sec. 702; Jones v. Gasstevens, ante, 411. This necessarily works a new trial in the instant case, as it follows, from what is said above, there was error in charging the jury that payment or tender of the purchase price was essential to the acceptance of the offer. Such payment or tender is not stipulated as a condition precedent to the acceptance of the offer. It was the understanding of the parties, according to their own interpretation, that this would belong to the performance of the contract, if and when consummated. Cole v. Fibre Co., supra. It is true, consummation and performance might have gone hand in hand, but it is not so nominated in the offer that consummation shall be by tender or payment of the purchase price.
For error in the charge, as indicated., the plaintiff is entitled to another hearing. It is so ordered.
New trial.