SOMERVILLE, J.
(1) Under the terms of the written contract between plaintiff and defendant, and in harmony with their mutual conduct thereunder, it is clear that defendant was originally bound to collect the. first premiums on all policies sold by him in cash, •and remit to plaintiff his portion thereof, or else, if defendant accepted notes in lieu of cash, he was bound to himself settle with plaintiff by cash payments with *98reasonable promptness. Tbe result, of course, is that, so far as plaintiff’s claims are concerned, defendant became indebted to plaintiff, as for money bad and received to bis use, or by account, for tbe full amount of plaintiff’s proportion of tbe premiums on all policies sold by defendant and confirmed and issued by tbe insurance company.
(2, 3) Under tbe common counts of tbe complaint, nothing remaining to be done under tbe contract except tbe payment to plaintiff by defendant of certain liquidated sums of money, plaintiff could recover all that was due him under tbe evidence. — Stafford v. Sibley, 106 Ala. 189, 17 South. 324. This being true, and tbe only issue under tbe complaint being as to tbe amount thus due, prejudicial error cannot be imputed to tbe action of tbe trial court in overruling demurrers to several special counts of tbe complaint which imperfectly set up tbe contract, especially as these claimed no more than plaintiff’s share of tbe premiums.— Practice Rules 45 (175 Ala. xxi, 61 South. ix.)
(4) In proving bow many and what character of policies bad been sold by defendant, it was not necessary for plaintiff to produce tbe policies themselves or to account for their absence, as for tbe admission of. secondary evidence. This was not proving the contents of written instruments, but merely describing and identifying tbe things sold, and tbe rule of primariness does not apply. — 17 Cyc. 494: ‘With respect to documents not tbe foundation, of tbe action, a distinction has been drawn between proving their contents and showing merely their subject; it being held that tbe subject of such documents may be shown by parol evidence without producing tbe originals or accounting for their absence.” — 17 Cyc. 509, citing numerous cases.
*99Moreover, there was in fact no dispute as to the existence and character of these policies.
(5,6) Whatever may have been the rights of plaintiff and the liability of defendant under the contract as originally understood, we think it is quite clear that plaintiff’s subsequent denial of defendant’s right to collect the notes, and his own assumption of the collection of the premiums directly from the policy holders, which was expressly assented to by defendant in his letter of August 17, 1909, estops plaintiff from now treating those premiums as if collected by defendant and charging him therewith. This is not a matter of set-off, but directly affects the amount which plaintiff is entitled to recover. On the clearest principles of justice and fair dealing, plaintiff could not interdict the payment of the premium notes to defendant, and at the same time hold him responsible as for money already collected for the use of plaintiff. The result of that action must be to relieve defendant of his former liability, except for premiums actually collected by him, and we think the trial judge erred in refusing to instruct the jury to that effect, as requested by defendant in charge Z. On this theory of the case, it is obvious that defendant, having consented to plaintiff’s interference, cannot now make it the basis of a claim for damages by way of set-off.
(7) An action for malicious prosecution sounds in damages merely, and it is not available as a set-off under our statutes. — Code, § 5858. Defendant here seeks to evade this rule by claiming and showing a single specific item of damage which is exactly ascertainable, and therefore liquidated in character, viz., attorney’s fees incurred by him in defending himself against the alleged malicious prosecutions. It has been expressly *100ruled, however, that the restriction of the statute cannot be thus avoided. — Walker v. McCoy, 34 Ala. 659; Nelms v. Hill, 85 Ala. 583, 5 South. 344. The jury were properly instructed that defendant could not recover on his plea of set-off.
Several minor questions of evidence need not be noticed. For the error indicated above, the judgment will be reversed, and the cause remanded for another trial. Reversed and remanded.
Anderson, C. J., and Mayfield and Thomas, JJ., concur.
ON REHEARING.
SOMERVILLE, J.
(8) The point is raised that estoppel is not available unless specially pleaded. This is the rule, of course; but counsel overlook the fact, which is shown by the record, that the defendant pleaded “in short, by consent, the general issue, with leave to give in evidence any matter that could be specially pleaded.” We have not held that the plaintiff is estopped from any recovery for breach of the contract sued on, but only that he cannot treat the premium notes as money in the hands of the defendant. He may, of course, have other grounds of action than the defendant’s failure to pay over money on hand; and it would seem that he has an equitable interest in the premium notes themselves.
The charge referred to in the opinion was designated as “Y,” instead of “Z,” by a typographical error, which has been corrected.