The Birmingham National Bank sued appellant Terry upon his promissory note. The record shows that “the defendant withdraws all pleas, except the plea of set-off, and the case tried on issue joined on the plea of set-off.” It would require a palpable disregard of this plain record entry were we to consider questions which might have legally arisen under other pleas, and which were not before the court. There was only one plea, and that was the plea of set-off, upon which issue was joined. Plea No. 2 reads as follows: “ The defendant, as a defense to the action of the plaintiff, sayeth that, at the time said action was commenced, the plaintiff was indebted to him in the sum of five thousand dollars, for the value of fifty shares of the capital stock of The Edison Electric Illuminating Company, the *570property of the defendant, which were sold by the plaintiff for the use of the defendant on or about the 8th day of December, 1888, and converted to its use, which he hereby offers to set-off against the demand of the plaintiff, and he claims judgment for the excess.” This plea distinctly states the shares were “ sold by the plaintiff for the use of the defendant,” and although these words in the latter part of the plea are followed by the averment, “and converted to its use,” the latter phrase, in the connection used, must be held to mean a conversion of the proceeds of the sale, rather than such wrongful conversion of the stock itself, as to authorize proof of damages resulting to the defendant by the sale. As framed, the defendant, by this plea, ratified the sale, and claimed, as a set-off the purchase price of the stock. The evidence is uncontradicted that the plaintiff credited the note with the purchase money received for the stock, and in his suit on defendant’s note, only claimed the balance unpaid.
Were we to consider the case as tried on plea No. 4, and regard that plea in the nature of a claim for damages, under the facts, the measure of recovery would be the difference between the price for which the stock sold, and its actual value when sold. And we have been unable to find any evidence, which would authorize a conclusion, that the stock did not bring its fair value on the day of sale. There is no evidence to show that there was any collusion or fraud or agreement between E. D. Johnston, representing the Bank, and the purchaser of the stock in regard to its sale or purchase. In fact the contrary is abundautly proven. Terry, who was a member of the Stock Exchange, by his 'pcwCT of attorney, directed that this stock be sold upon the Exchange. He was notified that it was going to be sold, was present when it was offered for sale, and knocked down to the purchaser. He knew the rules of the Stock Exchange, knew that the seller would be required to conform to its rules, and that a sale, made in accordance with them, would be a valid sale. There was no objection by him, at the time, that he had not had sufficient notice, nor did he object on account of the price bid. The subsequent advance in the market value of stock sold on exchange doubtless is a fruitful source of regret to sellers, who deal in stocks on exchange, but, in the absence of fraud, the advance in price can give no cause of action to the loser.
The principle of law that the same person can not be both buyer and seller has no application to the facts of the case. E. D. Johnston employed Lightfoot, a member of the Stock Exchange, to sell this stock. One E. W. Eucker, the pur*571chaser, employed Lightfoot to purchase on the exchange, at a limited price, stock of the character offered by Johnston. Johnston knew nothing of Sucker's engagement or intent tions. In accordance with the rules of the exchange, Light-foot secured the services of Bradñeld, another member of tbe exchange, to bid the price fixed by Sucker. 'Lightfoot knew the instructions of both Johnston and Sucker, but neither Johnston nor Sucker had any knowledge of each other’s intentions, or their instructions to Lightfoot. And as we have stated, there is no evidence to show, that the rules of the Stock Exchange, which were known to Terry, were not observed, or that the stock did not bring its fair market value, which was credited upon the note of the defendant.
Under any view we take of the case, the plaintiff was entitled to the general charge upon all the evidence, and it is unnecessary to consider special exceptions to the rulings of the court.
Affirmed.