On Appellants’ Motion for Rehearing and to Certify.
Appellants here contend that our decision in this case is in conflict with Witting v. Towns (Tex. Civ. App.) 265 S. W. 410; Browne v. Heid Bros., Inc. (Tex. Civ. App.) 12 S.W.(2d) 587; Sayeg v. Federal Mortgage Co. (Tex. Civ. App.) 16 S.W.(2d) 567; Austin v. Grissom-Robertson Stores (Tex. Civ. App.) 32 S.W.(2d) 205, and for that reason contend that we should grant them a rehearing, or, in any event, certify the question involved to the Supreme Court.
From a careful reading of those authorities we find that they are upon different facts and do not conflict with our holding in the original opinion.
In Witting v. Towns the cause of action was for debt and to foreclose a lien, while in the affidavit fraud was alleged and a recovery sought thereon. The court properly held that a different cause of action • could not be set up in the controverting affidavit.
In Browne v. Heid Bros., Inc., Heid Bros, alleged that twenty cars of oats, had been shipped to them at El Paso by appellant at an agreed price of 33½ cents per bushel; that appellant demanded 34½ cents per bushel, but later promised to reimburse Heid Bros, the one cent per bushel if they would receive the oats. In the controverting affidavit Heid Bros., among other things, alleged that the agreement was that the cars were to be delivered, weights and grades guaranteed, at destination. This court merely held such allegations to be irrelevant, and the judgment was reversed upon the facts.
In Sayeg v. Federal Mortgage Co., the petition alleged an action of debt, and a cause of action based on fraud was attempted to be set up in the controverting affidavit. We held that such could not be done.
In Austin v. Grissom-Robertson Stores, the judgment was reversed because the evidence failed to show that appellees relied upon the representations made in Taylor county. Therefore a decision on the question as to whether or not there was a variance between the petition and the controverting affidavit was not necessary.
After careful consideration, we have decided that there is not such a variance in the case at bar between the petition and the allegations of the controverting affidavit as to call for a reversal of the judgment. Both motions are accordingly overruled.