Count 3 of the complaint fails to show that these defendants are liable to plaintiff under their indemnity contract, as shown by Exhibit C. Defendants' undertaking was not to pay all debts and obligations of the Foshee Lumber Company, but only to see that none of them became a lien or charge on the property purchased *Page 79 by plaintiff from the lumber company, and to hold plaintiff harmless against such of those debts as were or became liens, incumbrances, or charges upon it. The count alleges the existence of a debt due from the lumber company to the Western Railway of Alabama, and that plaintiff was compelled to pay it; but it does not show that the debt had become, or would or could become a lien on any of the property intended to be protected. Several grounds of the demurrer aptly point out this defect, and the demurrer was therefore properly sustained.
We deduce from the pleadings and exhibits that the vital point of controversy between plaintiff and defendants is upon the status of the obligation of the lumber company to pay to the lessor railway company the cost of constructing a certain spur track on the lumber company's leased premises under penalty of cancellation of the lease contract in case of default therein; that is, whether, under the sale and transfer of that lease by the lumber company to plaintiff, that obligation was assumed by plaintiff, or remained the obligation of the lumber company, in view of a stipulation therein that plaintiff —
"assumes and agrees to perform the obligations therein [in the railroad lease contract with the lumber company] set forth."
Under count 6 of the complaint, plaintiff could make proof of his entire case as fully and completely as he could have done under counts 4 and 5, and hence the elimination of the latter counts on demurrer was not prejudicial to plaintiff and cannot work a reversal of the judgment. Bice v. Steverson, 205 Ala. 576,88 So. 753.
We find no prejudicial error, and the judgment will be affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.