99 Ala. 566 | Ala. | 1892
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
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
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.