
    Blue, et al. v. American Soda Fountain Company.
    
      A ssumpsit.
    
    (Decided April 20, 1907.
    43 So. Rep. 709.)
    1. Sales; Condition of Sale; Mortgage by Buyer; Effect.—A buyer who executes notes for the purchase price of property containing a retention of title until the notes are paid, and a mortgage on the property to secure the notes cannot defeat an action on the notes brought after the destruction- of the property, by setting up that the contract was a conditional. sale and that the title was in the seller until the notes were paid.
    2. Pleadings; Issue; Proof; Variance.—The complaint. declared on notes payable to the “American Soda Fountain Company, a corporationthe notes showed that they were payable to the “American Soda Fountain Co.” Held, not a variance as the abbreviation “Co.” is identical with “Company,” and the words, “a corporation” was not a part of the name.
    Appeal from Coffee Circuit Court.
    Heard before Hon H. A. Pearce.
    Action by the American Soda Fountain Company against J. D. Blue and others. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    H, L. Martin, for appellant.
    The name of a corporation is like the name of an individual.—137 Ala. 116. The first replication was insufficient.—TArkle v. Jemes, 129 Ala. 444. Under the proof the second and third replications fall' as does the fourth, and sixth. The fifth replication is bad on the authority above cited. Under the contract the property destroyed was the property of the American Soda Fountain Co., and not the property of Blue & Brother.
    J. S. Sanders, for appellee.
    The contract sued on has been construed by this court in'a former case.-— 
      American Soda Fountain Company v. Blue, 40 South. 218. If plaintiff proves any of several replications on which issue is joined the plea is answered and defend■ant takes nothing by 'it. — Fidelity cG Deposit Co. v. Mobile County, 124 Ala. 145; Cosier v. Brock, 19 Ala. 210; TÁverpool Co. v. Tillis, 110 Ala. 201. The mere bringing of a suit does not work an estoppel. — Huntsville B, '.L. Co. v. Corpening, 97 Ala. 681. In any event no estoppel is set up by plea or rejoinder.
   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 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.  