Where a case was tried upon the general issue alone, matters in avoidance of the allegations of the complaint, or in excuse or justification of the wrongful act imputed to defendant, were not within the issues. Birmingham Waterworks Plea or Answer.-Where the assignment of a contract to plaintiffs, as alleged in the complaint, was not denied by plea, defendant can not controvert such assignment for any purpose, and evidence offered therefor was properly excluded. Wager Lumber Co. v. Sullivan Logging Co. v. Vinter, 51 So. 356, 164 Ala. 490; Co., 24 So. 949, 120 Ala. 558. The rule that proof can not be received of the admissions of a party unless there is an allegation setting forth when, where, and to whom such admissions were made, does not apply to the case made by defendant in his answer. Brandon v. Cabiness, 10 Ala. 155. Writ as Evidence to Support Plea in Abatement.-On an issue of nul tiel record, a writ, as part of the record, is proper evidence to support a plea in abatement that a suit was pending for the same cause of action at the time of the issuance of the writ. Gaston v. Parsons, 8 Port. 469. Possession. Where the plaintiff in detinue claimed under a bill of sale made to his wife by her father before their marriage, and the defendant under the will of the father, it was held, under the plea § of the statute of limitations, that the defendant might show the nature of the possession of the father. Williams V. Haney, 3 Ala. 371. Reply. Where the defendant pleads the existence of a record, it is not necessary for the plaintiff to new assign, in order to let in proof of an extrinsic fact, which does not contradict, but merely limits, the operation of the record. Williams v. Spears, 11 Ala. 138. § 218. nial. American Oak Extract Co. v. Ryan, 112 Consent of Parties.-The consent of parties that all matters that could be specially pleaded should be given in evidence under the general issue is tantamount only to a plea of "Not guilty," or of the general issue. Burns v. Campbell, 71 Ala. 271. Matters Arising after Issue Joined.— If the parties go to trial on the general issue, they are confined to the rights existing at the commencement of the action. Feagin v. Pearson, 42 Ala. 332. Authority of Adverse Party.-The general issue pleaded is a waiver of any objection to the authority of the attorney of the plaintiff to bring the suit. Lucas v. Bank of Georgia, 2 Stew. 147. 218 (2) Set-Off or Counterclaim. A set-off is not available under a plea of the general issue. Marlowe v. Rogers, 102 Ala. 510, 14 So. 790. Under a general issue, in an action to recover the value of work and labor done. defendant may recoup damages caused by the workman's breach of contract for the English performance of the work. Wilson, 34 Ala. 201. 7'. An agreement between a landowner and a railroad company, to submit to ar General Issue or General De- bitration the assessment of damages for § 218 (1) In General. Evidence which denies plaintiff's cause of action is admissible under the general issue. Young v. Campbell, 2 Ala. App. 493, 56 So. 605. Necessity of Pleading Specially Matter of Defense. If defendant does not reply solely on a denial of plaintiff's cause of action, he must plead specially the matter of defense. Behrman v. Newton, 103 Ala. 525, 15 So. 838. Matter in Avoidance.-Evidence of new or special matter in satisfaction of avoidance is not admissible under a general denial. American Oak Extract Co. v. Ryan, 112 Ala. 337, 20 So. 644. a right of way, provided that, if either party should fail to observe the decision of the arbitrators, he or it should pay to the other a certain sum as liquidated damages. Held, in an action by the railroad company to recover such damages, that defendant was not entitled to set off un der the general issue the award of the arbitrators. Odum v. Rutledge & J. R. Co., 94 Ala. 488, 10 So. 222. § 219. General Issue, with Notice or Leave as to Special Matter. Where, so far as shown by the record, no pleas were filed by defendant, though he pleaded the general issue with leave to give in evidence any matter that might be specially pleaded, this amounted to no § 222. more than a plea of the general issue, to Evidence on Ground of Variance," § Nature and Effect in General. Set-Off.-Under the general issue, with Ala. 590. Reason for Conformity of Proof to Note or Contract on Which Suit Based When a demand for a bill of particu- Code 1907, § 5326, relative to bills of Materiality to Issue. The case will not be reversed for im- A variance which does not change the Where, in an action on an attachment Effect of Videlicet.-Where a declara- § 221. Variance between Allegations and tion in assumpsit on a verbal contract al- Proof. As to variance between process and leges the time of its making under a vide- $ 225. Place. tice, vol. 22, these rules are laid down: R. Kilgore & Son v. Shannon & Co., 6 (1) As a general rule, if part only of the Ala. App. 537, 60 So. 520. allegations be proved, it is sufficient if what is proved affords ground for maintaining the action (page 567); and (2) that the rule applies only to allegations that are material to the action, or to those immaterial allegations which are so interwoven with those that are material as to make the latter depend upon (Pages 533, 535.)" Southern R. Co. v. Lee, 167 Ala. 268, 52 So. 648, 651. them. When it is unnecessary to allege with certainty the place in which some fact happened, as where stock was injured by a railway train, the occurrence need not be proved at the precise place described. Central of Georgia Ry. Co. v. Thomas, 55 So. 443, 1 Ala. App. 267. § 226. Time. "The only authority cited to support appellant's contention in this connection is East Tennessee, etc., R. Co. v. Carloss, 77 Ala. 443, which was decided under a statute wholly inapplicable to this case even if it were now in force. It was "In the case of Louisville, etc., R. Co. The failure of one, suing a railroad v. Johnston, 79 Ala. 436, the complaint company for injuries caused by a defect is not set out in hæc verba, but it is in a railroad bridge, to prove the date of stated that the gravamen of the action the injury as alleged in the complaint, is was that the defendant 'willfully refused not a fatal variance. Southern R. Co. to stop' the train, and carried the plain-v. Taylor, 42 So. 625, 148 Ala. 52. tiff several hundred yards beyond, where she was compelled to alight, without her consent, etc., and this court, in addition to saying that, if the failure to stop was merely negligent and not willful, the plaintiff could not recover, said, also, that it would constitute a variance, if the evidence showed that the plaintiff not merely submitted, but consented to get off the train.' The report of this case is not full, but it is evident that the court was not directing its attention to a case in which the first allegation, to wit, that he 'willfully refused to stop,' was proved, while the last one, to wit, that she was compelled to alight, was not. The court was merely discussing the difference between the allegation and the proof in each branch of the case." Southern R. Co. v. Lee, 167 Ala. 268, 52 So. 648, 650. "In the later case of Alabama, etc., R. Co. v. Heddleston, 82 Ala. 218, 3 So. 53, 55, where the complaint alleged first the misdirection of the ticket agent in putting him on a train which did not stop at his desired destination, and then stated also facts tending to show a wrongful ejection from the train, which last allegation was not proved, this court said: 'A full answer to this is that the complaint sets forth and counts on both causes of action. When such is the case, it does not prevent a recovery. The plaintiff succeeds to the extent the proof sustains his allegations, and only fails to the extent his proof fails.'" Southern R. Co. v. Lee, 167 Ala. 268, 52 So. 648, 650. Statements after the phrase "to wit" need not be proved strictly as alleged. J. repealed by its omission from later codifications." Southern R. Co. v. Taylor, 148 Ala. 52, 42 So. 625, 627. Where a date is under a videlicet in a pleading, it need not be proved exactly the World, 49 So. 883, 161 Ala. 561. Alexander v. Woodmen of as alleged. Where the counts alleged time after a videlicet, there was no failure of proof because the evidence did not conform to the exact dates. Pollak v. Gunter & Gun ter, 50 So. 155, 162 Ala. 317; Carlisle v. Davis, 9 Ala. 858. Where the date of a transfer of a policy of insurance is stated under a videlicet, a difference of four days between the allegation and proof is not a variance. Manchester Fire Assur. Co. v. Feibelman, 23 So. 759, 118 Ala. 308. An allegation in a complaint for conversion that the property was converted on "to wit," a certain date, relieved plaintiff of proving that it occurred on that particular day, and permitted him to prove that it occurred on or about that day. J. R. Kilgore & Son v. Shannon & Co., 6 Ala. App. 537, 60 So. 520. Variance Fatal.-In an action for the loss of a cow, there was fatal variance between an allegation that it was killed May 18, 1905, and proof that it was killed October 10, 1904. Central of Georgia Ry. Co. v. Simons, 43 So. 731, 150 Ala. 400; § 227. Parties or Other Persons. Name of Corporation. Under Code 1886, § 3405, providing that appeals from justices shall be tried de novo, and according to equity and justice, regardless of any defects in the proceedings before the justice, though a cause of action is stated to be for the price of goods purchased by a defendant corporation in the name by which it is sued, and it appears that they were purchased by said corporation before a change of its name, the variance is not fatal. Chewacla Lime Works v. Dismukes, 87 Ala. 344, 6 So. 122. Where complainant alleged a joint liability of both defendants, and the proof showed that only one of the defendants was liable, and there was a conflict as to which one, there was a fatal variance. Lord v. Calhoun, 50 So. 402, 162 Ala. 444. Where a suit on a contract is joint, and the proof shows that only one defendant is liable, it is a fatal variance, and judgment can not be rendered against one alone, unless the other is discharged on some personal defense. Smythe v. Dothan Foundry & Machine Co., 52 So. 398, 166 Ala. 253; Lord v. Calhoun, 162 Ala. 444, 50 So. 402; Garrison v. Hawkins Lumber Co., 111 Ala. 308, 20 So. 427; Gamble v. Kellum, 97 Ala. 677, 12 So. 82. There is no variance between the comWhere it was alleged that a contract plaint in an action on a note payable to was made with plaintiff by the defenda corporation, which describes the cor- ants, and the proof showed that the conporation as the "American Soda Foun- tract was made by a partnership of which tain Company, a corporation," and the defendants were members, there was no proof, which shows that the note is pay-variance. Austin v. Beall, 52 So. 657, 167 able to the "American Soda Fountain Ala. 426. See, also, Clark v. Jones, 87 Co.;" the abbreviation "Co." being iden- Ala. 474, 6 So. 362. tical with "Company," and the addition of the words "a corporation" not being a part of the name. Blue v. American Soda Fountain Co., 43 So. 709, 150 Ala. 165. Other Persons Involved in Transaction.-Plaintiff, suing for the price of work done under a contract alleged to have been made with him, is entitled to recover even if it be shown that the contract was made with him and another, whose interest plaintiff had acquired when the action was commenced. Sublett v. Hodges, 88 Ala. 491, 7 So. 296. Joint or Several Right or Liability.Where the plaintiffs sue jointly, proof of a liability from the defendant to one plaintiff alone will be rejected, as it does not support the cause of action disclosed There is a fatal variance between an averment of a joint employment by two defendants of plaintiff as a broker to procure a purchaser for lands, and proof of employment by only one defendant not participated in by the other, though Code 1907, § 2504, authorizes judgment against one of several defendants. Handley v. Shaffer, 177 Ala. 636, 59 So. 286. Code, § 2609, declaring that when suit is instituted against several defendants, whether as partners or otherwise, recovery may be had against one or more, does not allow recovery on proof inconsistent with the complaint, as where a contract is alleged to have been made by all the defendants jointly, while the proof shows it to have been made by a part, but only where part have been discharged on personal defenses, not negativing the allegation of a joint contract originally. Gamble v. Kellum, 97 Ala. 677, 12 So. 82; Walker v. Mobile Ins. Co., 31 Ala. 529; Jones v. Engelhardt, 78 Ala. 505. Though Code 1896, § 44, provides that when suit is brought against several, "whether sued as partners or otherwise, the plaintiff may recover against one or more," where the complaint alleges a Nature of Instrument.-A bill of exchange is admissible in evidence where it does not vary from that described in the pleadings, though it was accepted by the drawee under a name different from that expressed in the bill. Alabama Coal Min. Co. v. Brainard, 35 Ala. 476. Where plaintiff declared on a note, proof of a bond is a fatal variance. Phillips v. Americus Guano Co., 110 Ala. 521, 18 So. 104. Title and Ownership.-Where the bill alleges a gift of slaves to complainant "to her separate use for life, with remainder to her children," while the proof shows Place of Execution. An instrument a gift "to her and the heirs of her body, made payable at a designated place may free from the control of her husband," be given in evidence under a complaint the variance between the allegata and probata is fatal. Crabb's Adm'r v. Thomas, 25 Ala. 212. Where a married woman, seeking an equitable attachment, alleged that the "whole" of the money sought to be recovered was her property, and the proof showed that she had only a life interest, with remainder to her children, there was a fatal variance. Winter v. Merrick, 69 Ala. 86. counting on an instrument as if made payable generally. Kansas City, M. & B. R. Co. v. Cobb, 100 Ala. 228, 13 So. 938, overruling Puckett v. King, 2 Ala. 570. "The precise question came before this court at a very early day, in the case of Puckett v. King, etc., Co., 2 Ala. 570, and it was held that ‘a note which, on its face, is made negotiable and payable at the Branch Bank of the State of Alabama, at Mobile, can not be given in evidence under a declaration describing a note as payable generally.' The principle here declared was fully recognized in the case of Clancy v. Hilliard, 39 Ala. 713. This rule was departed from in the subsequent cases of Clark v. Moses, 50 Ala. 326, and Morris v. Poillon, 50 Ala. 403. The question given for the rule in the case of Puckett v. King, etc., Co., supra, is that there is a distinction between the contracts evidenced by the notes, in that, as to the note payable at a particular place and day, the maker is authorized to show this fact in his defense in a plea of tender. His contract, therefore, is not the same as when he contracts to On a bill by a widow seeking a conveyance of land purchased by her husband, but not fully paid for before his death, on which she claimed the entire ownership of the title of which her husband died seised, the evidence showing that, her husband's estate not having been judicially ascertained to be insolvent, she had only a right to "retain" the homestead as against ordinary creditors and heirs, held, that there was a fatal variance. Munchus v. Harris, 69 Ala. 506. There is a fatal variance between a bill filed by a married woman to enforce a lien on land, alleging that the title bond was conditioned for the making of title to her, and proof that it was conditioned pay absolutely, and wherever the note for the making of title to her husband and brother, who gave their notes for the unpaid purchase money, although the purchase was intended by her husband to be for her benefit. Lewis v. Montgomery Mut. Building & Loan Ass'n, 70 Ala. 276. may be presented for payment." Kansas City, etc., R. Co. v. Cobb, 100 Ala. 228, 13 So. 938, 939. Parties to Instrument.-When the declaration describes a writing as made by the defendants, "partners under the firm of G. N. U. & Co.," it is not supported |