Stephens v. International Harvester Co. , 16 Ala. App. 612 ( 1918 )

BROWN, P. J.

[1] We think it clearly appears from the recitals of the final judgment of the court that the nonsuit was superinduced by the adverse rulings of the court on the demurrers to both the original and amended complaint, and that the record presents the question of their sufficiency for review. Berlin Machine Co. v. Ewart Lumber Co., 184 Ala. 272, 63 South. 567; Laster v. Blackwell, 128 Ala. 143, 30 South. 665.

[2] - None of these counts set out the instrument described therein in haec verba. The first four counts affirmatively aver that the instrument is a chattel mortgage, while the others aver that in the instrument the defendant retained a vendor’s lien on the property, and we are not able to say that these averments are rendered mere conclusions by the additional facts set out in the amendment to the several counts, or that it appears therefrom that the instrument described in the first four counts is an ordinary conditional sale, rather than a mortgage. Dilworth v. Holmes Furn. & Vehicle Co., 183 Ala. 608, 62 South. 812; Tompkins v. Monticello Cotton Oil Co. (C. C.) 137 Fed. 625.

[3] Each and all of the counts, however, are subject to the objection pointed out in the seventeenth and eighteenth grounds of demurrer, rendering the ruling on the demurrers free from error.

Affirmed.