Blue v. American Soda Fountain Co.

SIMPSON, J. This was an action on several notes given for a soda fountain and appurtenances. The defendant filed pleas setting up defense that said notes were given for a soda fount and fixtures under a special contract by which the title to said property was to remain in the plaintiff until the notes were paid, and that, while it still remained the property of the plaintiff, it was consumed by fire. The plaintiff filed a number of replications; some of them replying that, after the execution and delivery of the notes, an indenture was entered into between the parties, which is set out in full, by which the defendant made a mortgage on said soda fount and fixtures to secure the payment of said notes. Issue was joined on the replications. When this case was before this court at a previous term, the court held that said instrument, set up in said replications, was a mortgage, and that said mortgagor could not contend, after the destruction of the goods, that the original contract of sale was a conditional oue, so that the title did not pass to him.-—American Soda Fountain Co. v. Blue (Ala.) 40 South. 218. Said mortgage was in evidence on the trial, as set out in the replication. It follows that, the replications being proven,.the plaintiff was entitled to the general charge, as given by the court, on written request.—Liverpool & L. & G. Ins. Co. v. Tillis, 110 Ala. 201, 210, 17 South. 672, et seq.; Glass v. Meyer, Son & Co., 124 Ala. 332, 335, 26 South. 890. There is no force in the suggestion of counsel for appellant that there was a variance between the complaint and the proof, because the complaint described the plaintiff as the “American Soda Fountain Company, a [167] corporation,” Avhile the notes are payable to the “American Soda Fountain Co.”; the abbreviation “Co.” being identical Avith “Company,” and the addition of the Avords “a corporation” not being a part of the name of the plaintiff, but only a designation of its character. The judgment of the court is affirmed. Tyson, C. J., and Haralson and Denson, JJ., Concur.