The plaintiff’s action was ibr cue wrongful conversion of the bonds pledged. No other cause of action was alleged. The defense was two-fold. First, that the bonds were sold by the pledgee by the express direction of the plaintiff. Second, if not that, the plaintiff knowingly received the credit therefor, and on the 5th of May, by checking out the balance due him of $233.80, had ratified the sale.
The defendant did not set forth in his answer or in any manner plead, by way of set-off or cross action, the account of the bank against the plaintiff. That the plaintiff did not regard the answer as pleading any set-off or cross demand, is evident from the fact that no reply was filed. On the trial the numerous checks of the plaintiff on the defendant, the pass-book, the bank-books and deposit tickets were introduced in evidence. Plaintiff also gave evidence tending to show that in the account which was balanced on the 5th day of May, the defendant had charged him professedly for exchange, interest, etc., more than the legal rate of interest. The defendant gave evidence on its behalf tending to show the contrary.
At the defendant’s instance the court charged the jury “ that the first count in the petition being withdrawn, the only thing for the jury to consider is whether the bonds were wrongfully converted by the defendant.” and that *311“if the jury believe that the bonds were sold with the consent of the plaintiff, or if he afterward knowingly received the benefit of the sale, he cannot recover.”
Plaintiff excepted, and now complains of these instructions. They appear to us to be correct in principle, and applicable to the pleadings and the evidence.
The specific objection made by appellant is the statement that the alleged wrongful conversion is the only question for the jury. This was correct under the pleadings, and certainly, in view of the full instructions of the court on every point in the case, not erroneous. Such was the only question which, under the issues, as the parties made them, was proper to be tried. This question, it is true, involved several considerations, such as, whether Graves had prior express authority from the plaintiff to sell, or, if not, whether the plaintiff had ratified the sale by accepting the proceeds of the same. So the question of ratification involved the other question, whether the defendant knew when he drew the check for $233.80, on the 5th day of JVfay, that the bonds had been sold and the proceeds credited to his account. While this is so, it is likewise true, that the question of the wrongful conversion was, in the sense in which it was intended by the court, the real question at issue and on trial between the parties.
1. Instructions: considered together. The specific objection taken by appellant to this part the instruction is that it withdrew from the jury all questions of usury in the bank account of the defendant against him.
The answer to this is to our minds satisfactory.
It is, first, that other portions of the charge did instruct the jury as to usury, and the instructions must be regarded as a whole.
*3122. Pleading and practice: usury: replication. *311Second, under the pleadings the question of usury had no proper place in the case. If the bank had set up by *312wa.7 set'°ff its account against the plaintiff a yiew to defeat his recovery or reduce p.g he might have replied usury. But it made no such defense. As before stated, its only defenses were, first, prior authority from plaintiff to sell; second, subsequent settlement by the plaintiff, and ratification of the sale with full knowledge thereof.
. Under the issues, defendant could properly offer no evidence of any other defense. If the defendant had offered the bank account in evidence as a set-off, or for the purpose of reducing or defeating plaintiff’s recovery, the latter could successfully have objected to its introduction. Neither of the above two defenses could be met by a replication of usury. That is to say, if the plaintiff authorized the sale of the bonds, by Graves, as the latter testified, and they were sold and credited, plaintiff, who accepted the proceeds and, with knowledge, checked out the balance, usury in the bank account if proved would not avoid this defense.
And, notwithstanding the able argument of appellant’s counsel, which we have carefully considered, we cannot see how this view at all militates against the doctrine of Smith v. Milburn (17 Iowa, 30),- as to where a replication is not necessary
3. Pledge: private sale. Appellant also complains of the fifth paragraph of the charge of the court given on its own motion, q'his portion of the charge is as follows:
“If you find that the sale of the bonds claimed for was made by the consent of the plaintiff, or with his knowledge, or if you find that he accepted the credit on his ■ bank account, arising from-the avails of such sale, although he did not know thereof until- after the sale, then he cannot complain that the sale was not made in accordance ■■with the requirements of the law regulating sales of property pledged, or, at most, not unless he shows that at *313the time of such sale the bonds did not realize to him- the full, fair market value of the same.”
Appellant makes the point that this direction to the jury “ repudiates the claim that the bonds weré a pledge, and overturns the whole doctrine of pledge; that a pledgor has a life-time to redeem ,■ that if the pledgee wishes to sell, he must first demand redemption, and if not redeemed the pledgee must have reasonable notice of the time and place of sale;, that twelve hours is not a reasonable time, and that the sale must be at auction and conducted with the strictest fairness.”
We have not been able to discover how this instruction is open to the objection of overturning the doctrine of the law concerning pledged property.
The charge must be looked at in view of the testimony. The sale referred to is the admitted sale of the bonds by Graves. This was conceded to be a private sale. It was not claimed to have been a sale made under the law of pledge. It was claimed to have been made by the direction and express consent of the plaintiff. And the instruction simply says, in substance, that if the sale was so made, or if the plaintiff afterward knowingly accepted the proceeds of such sale, he cannot complain, as there would in that event be no conversion. This is certainly the law. And in the case supposed in the instruction, the law certainly is not, as implied in the appellant’s argument, that the pledgee must demand redemption, give notice to pledgor, and sell at auction.- The sale is under the contract of the parties, and not under the law.
The reference in the charge to four checks signed by Graves, in Hamilton’s name, as bernia memorandums, did not, as we can see, prejudice the plaintiff’s case.
Nor did the court, in the third division of the charge, improperly assume facts as proved. The facts referred to *314were merely introductory, leading the minds of the jury to the controverted points in the case.
Nor did the court, in the fourth paragraph, give an unfair advantage to the defendant in its statement of the respective positions and claims of the parties.
Appellant’s brief mistakes the latter portion of this paragraph in respect to the alleged settlement. The court did not hold, as appellant claims, that lie was bound within a reasonable time to ascertain any mistake in the settlement. But it said to the jury that if “ there was a mistake in the settlement, and the plaintiff, within a reasonable time after the discovery of such mistake, notified defendant thereof and claimed to have it corrected, then such settlement is not conclusive on him, and he may recover such amount as he may have shown you^tliat he was actually damaged thereby.”
This was not unfavorable to the plaintiff.
In our opinion the jury must have found either that the plaintiff gave authority to Graves to sell, or that he afterward knowingly accepted the proceeds of the sale. If this is so the alleged conversion was not established, and hence the rule as to the measure of damages, if there had been a conversion, becomes immaterial.
We do not, therefore, deem it necessary to enter upon an examination of the question, whether the damages are to be measured by the value of the bonds at the date of the sale, or at the date of the demand, or within a reasonable time after conversion, or after demand, or whether there may be a recovery of the highest market value down to demand or trial.
Affirmed.