delivered the opinion of the court, January 15th 1877.
Had the plaintiff’s claim been confined to the value of the stock sold by the defendant, the nonsuit Avould have been unquestionably right. Admitting that, under the circumstances, the sale Avas a Avrongful conversion, and'that plaintiff might waive the tort and sue in assumpsit, the measure of his damages Avould be the market *241value at the time of conversion. It is not the rule even in the action of trover in such a case, that the plaintiff is entitled to recover the highest price which the stock would have commanded at any time before the trial. That rule is confined to the case where there is a duty or obligation devolved upon a defendant to deliver such stocks at a particular time, and that duty or obligation has not been fulfilled: Neiler v. Kelley, 19 P. F. Smith 403. Here it was manifest from the plaintiff’s own evidence that the defendant had fully accounted to him for the market value of the stock on the day of sale. In an action for money had and received which waives the tort, only the amount received could be recovered.
But the plaintiff showed that the defendant had charged him and retained out of the proceeds of the stocks and securities' received by him several sums of money for carrying the stocks, amounting, it is alleged, to $1233. Upon this part of his case, we think that there were questions which ought to have gone to the jury. There was evidence that defendant had agreed to purchase and carry the stock for the plaintiff for seven per cent. As it appears to have been understood that the stock was to be bought and carried in New York, there was nothing unlawful in stipulating for the rate of interest which was lawful there. But without an agreement that plaintiff should reimburse defendant whatever he might have to pay brokers in New York, the defendant had no right to make such charge. Whether there was such an agreement was a question of fact for the jury. The plaintiff received notice from the defendant on the 27th September 1868, that he had made such charges of what he calls extra interest up to that day, amounting to $694. Subsequent charges were made on the 28th, 29th and 30th September. There was evidence that the plaintiff had assented to the sale of his stock after he was made acquainted with the charges, for the reason that they were rapidly eating up the securities he had pledged for margin. He afterwards received the balance due him according to plaintiff’s account without objection. All this was certainly evidence that(1the understanding was that he was to reimburse the defendant the charges of the New York brokers; but it was for the jury and not for the court to draw the inference. There was evidence that other brokers at the same time were charging less, enough certainly to cast upon the defendant the onus of proving that he had actually been compelled to pay the sums he claimed. Bevan v. Cullen, 7 Barr 281, has no application to this case. It arose upon the plea of the Statute of Limitations — the answer to which was merchants’ accounts — and what was decided below and above was, that where an account was rendered to his principal by a factor abroad, and the consignor acquiesced and ordered the balance to be shipped without objection to the items, it was an account stated, and was barred by the lapse of six *242years. Nor has the case of Reeside’s Executor v. Reeside, 18 Wright 322, any application. There an executrix appointed the defendant her agent or attorney to settle up a large estate, to collect assets and pay debts, and it was held that without an account stated and a balance struck, assumpsit would not lie, but the remedy must be account render or a bill in equity. There all that the defendant undertook to do was to account, and it was treated as analogous to the case of co-partners. Rut here in effect is a simple case of debtor and creditor. The defendant advanced money on a pledge of securities, and as a broker for plaintiff purchases stock. Stock and securities are sold, and he pays the plaintiff the balance, which he admits to be due. Surely to the extent of the money of the plaintiff which he retained by virtue of credits to which he was not entitled it was money had and received to plaintiff’s use. It is clear that the defendant insisted upon these items as money actually paid by him with plaintiff’s knowledge or assent. It was not, therefore, the case of money paid on an usurious agreement, barred by the lapse of six months.
Judgment reversed, and & procedendo awarded.