Motions to strike out irrelevant parts from pleadings are addressed to the discretion of the trial court and may be overruled without error. Blumberg v. Speilberger, 209 Ala. 278, 96 So. 191; National Surety Co. v. O'Connell, 202 Ala. 684, 81 So. 660; So. Ry. Co. v. Coleman, 153 Ala. 266, 44 So. 837; Bixbey-Theisen Co. v. Evans, 174 Ala. 571, 57 So. 39; Roddam v. Brown, 201 Ala. 109, 77 So. 403. Fraud, in one aspect, is the suppression of a material fact when the party is under the obligation to communicate it from the particular circumstances of the case as where the person concealing the material fact has particular knowledge of it and keeps silent with intent to defraud. Code 1940, Tit. 7 § 109; Mudd v. Lanier, 247 Ala. 363, 24 So.2d 550; Metropolitan Life Ins. Co. v. James, 238 Ala. 337, 191 So. 352; Standard Motor Car Co. v. McMahon, 203 Ala. 158, 82 So. 188; Corry v. Sylvia Y Cia, 192 Ala. 550, 68 So. 891; Williams v. Bedenbaugh, 215 Ala. 200, 110 So. 286; Jordan Sons v. Pickett, 78 Ala. 331. Subsequent events are evidence of existing conditions such as solvency of a corporation and its ability to perform a contract.
Section 314, Title 7 of the Code does not have the effect of making any ruling reviewable on appeal which was not reviewable at time of passage of the Act of 1915, but simply makes written motions a part of the record, obviating the necessity of reserving an exception to the ruling on a written motion. National Surety Co. v. O'Connell, 202 Ala. 684, 81 So. 660; Mazer v. Brown, 259 Ala. 449, 66 So.2d 561. In order to secure review on appeal of propriety of statement or instruction of trial court during trial it is necessary that objection be made to it and exception reserved.
A recital of an exception in the judgment entry will not avail. Dorrough v. Mackensen, 231 Ala. 431, 165 So. 575; National Surety Co. v. O'Connell, 202 Ala. 684, 81 So. 660; Grand Bay Land Co. v. Simpson, 202 Ala. 606, 81 So. 548; Black Mercantile Co. v. Ayers, 24 Ala. App. 488, 136 So. 866; Williams v. Woodward Iron Co., 106 Ala. 254, 17 So. 517; Bridgman v. Doss, 9 Ala. App. 615, 64 So. 173; Code, §§ 9502, 8981, 6432; Finney v. Studebaker Corp., 196 Ala. 422, 72 So. 54; Wood Pritchard v. McClure, 209 Ala. 523, 96 So. 577; Clark v. McCrary, 80 Ala. 110; Becker Asphaltum Roofing Co. v. Nichols, 23 Ala. App. 305, 124 So. 504; White v. Roe, 151 Ala. 287, 44 So. 211; Busenlehner v. Parsons, 226 Ala. 548, 147 So. 633; Pow v. Southern Const. Co., 235 Ala. 580, 180 So. 288; Lone Star Cement Co. v. Wilson, 231 Ala. 83, 163 So. 601; Jerrell v. Equitable L. Assur. Soc., 222 Ala. 687, 134 So. 132; Owens v. Gibbons, 19 Ala. App. 556, 99 So. 48; Byrd v. Jones, 24 Ala. App. 65, 130 So. 162; Linden v. Amer.-La France, etc., 232 Ala. 167, 167 So. 548; Arlington Realty Co. v. Lawson, 230 Ala. 499, 162 So. 107; Larkinsville Min. Co. v. Flippo, 135 Ala. 577, 33 So. 662;
The record proper shows that motion was made in writing, and on appeal became a part of the record proper, and that it is not necessary for an exception to be reserved to present the ruling for review. Section 9459, Codes 1928 and 1923; National Surety Co. v. O'Connell, 202 Ala. 684, 81 So. 660; Lusk v. Champion Register Co., 201 Ala. 596, 79 So. 16; Grand Bay Land Co. v. Simpson, 202 Ala. 606, 81 So. 548; King v. Scott, 217 Ala. 511, 116 So. 681; Thomas v. Carter, 218 Ala. 55, 117 So. 634; Union Indemnity Co. v. Webster, 218 Ala. 468, 118 So. 794; Shepherd v. Clements, 224 Ala. 1, 141 So. 255; Formby v. Whitaker, 225 Ala. 154, 142 So. 536; St. Louis-San Francisco R. Co. v. Kimbrell, 226 Ala. 114, 145 So. 433; Nunez v. Borden, 226 Ala. 381, 147 So. 166. It will be observed that the two proceedings were the same subject-matter and parties. One was an attempt at original assessment for street improvements that was vacated on appeal; the other was for a reassessment as permitted by law (Hamrick v. Town of Albertville, 219 Ala. 465, 122 So. 448), and not within section 7222 of the Code.
It is not subject to the demurrers as to the special or general damages claimed. If the count contained improper allegations, with respect to damages for which no recovery could be had, the court would not be put in error for overruling the demurrer to the entire count, pointing them out, nor for refusing to strike them from the count, because it was open to the defendant to object to the evidence introduced to support the averments, and they could, if improperly claimed, be eliminated by requesting proper instructions of the court to the jury. Vandiver v. Waller, 143 Ala. 411, 39 So. 136; Plylar v. Jones, 207 Ala. 372, headnote 3, 92 So. 445; National Surety Co. v. O'Connell, 202 Ala. 684, 81 So. 660. This machine was to be used in dressing lumber. Plea 3 was subject to demurrers, and the court did not err in sustaining demurrers to it.
Rule 45; Pratt Con. Co. v. Vintson, 204 Ala. 185, 85 So. 502; Morris v. Bragan, 195 Ala. 372, 70 So. 718; Thomas v. McArdle, 207 Ala. 521, 93 So. 395; Black v. Sloss Co., 202 Ala. 507, 80 So. 794; Sov. Camp, W. O. W., v. Ward, 201 Ala. 446, 78 So. 824; Barnes v. Marshall, 193 Ala. 94, 69 So. 436; Finney v. Newson, 203 Ala. 191, 82 So. 441; Birmingham Iron Development Co. v. Hood, 19 Ala. App. 4, 94 So. 835; Best Park Amusement Co. v. Rollins, 192 Ala. 534, 68 So. 417, Ann. Cas. 1917D. 929. There was no reversible error in overruling plaintiff's motion to strike certain allegations of damage from defendant's plea of set-off. Vandiver v. Waller, 143 Ala. 411, 39 So. 136; Goldsmith, etc., v. Picard, 27 Ala. 142; Marx v. Miller, 134 Ala. 347, 32 So. 765; Davis v. L. N., 108 Ala. 662, 18 So. 687; Daughtery v. Am. U. T. Co., 75 Ala. 168, 51 Am.Rep. 435; Worthington Co. v. Gwin, 119 Ala. 44, 24 So. 739, 43 L.R.A. 382; Brookside-Pratt v. McAllister, 196 Ala. 110, 72 So. 18; National Surety Co. v. O'Connell, 202 Ala. 684, 81 So. 660; Plylar v. Jones, 207 Ala. 372, 92 So. 445; Bush v. Russell, 180 Ala. 590, 61 So. 373; Continental Cas. Co. v. Ogburn, 186 Ala. 398, 64 So. 619. Rudulph Smith, of Birmingham, opposed.
However, the ruling of the trial court upon the respective motions is not revisable by this court. National Surety Co. v. O'Connell, 202 Ala. 684, 81 So. 660. The seventeenth assignment of error asserts that the trial court erred in refusing to defendant the following written charge D.