Union Fertilizer Co. v. Johnson

DENSON, J. The complaint counts for recovery on “a bond or bill single,” alleged in the complaint to [161] have been “executed by the defendants and oné Joe Wester, who is not sued, on the 20th day of January, 1902, and payable to the plaintiff as follows: $250 in 30 days after the date thereof, and $371.66 on November 1, 1902, after date thereof.” It needs no argumentation, nor citation of authority, to show that the instrument offered in evidence in support of the complaint materially varies from the allegations of the complaint. There is a fatal variance. The instrument offered does not support the complaint. Upon this consideration, and without regard to any other question that may be presented by the Mil of exceptions, the court- properly gave the affirmative charge, with hypothesis, as requested by the defendants.—Phillips v. Americus Guano Co., 110 Ala. 521, 18 South. 104; Davis v. McWhorter, 122 Ala. 570, 26 South. 119. The -bill of exceptions shows affirmatively that the plaintiff had the benefit, on the trial of the matters set up in its replications, to which demurrers were sustained. Therefore no injury resulted to .the plaintiff from the ruling of the court on the demurrers, even if the ruling Avas erroneous, which we do not decide. The result is an affirmance of the judgment of the lower court. Affirmed. Tyson, C. J., and Haralson and Simpson, JJ., concur.