On Motion for Rehearing
PER CURIAM.On original submission we assumed that a decision of a question of law was decisive of all of the consolidated cases. We remain of that opinion. We have concluded, however, that we should not have affirmed the judgment of the Court of Civil Appeals.
Evidence was introduced on the trial of the several consolidated cases. If that evidence satisfied the trial court that the several respondents were violating the property restrictions or were threatening to do so, it was its duty to enter a judgment containing proper injunction decrees. A judgment containing a separate injunction decree against each of the respondents was entered. As to each respondent the injunction runs against “renting a room or rooms upon their [his or her] premises, or any part thereof, and from otherwisfe using their [his or her] premises, or any part thereof, tówit: [Here the property is described] for any purpose other than as and for a private residence for the members of a single family, including the bona fide servants, if any, engaged on the premises in the domestic service of such family, until April 15, 1973,” and as long thereafter as the restrictions in the trust agreement may be extended in accordance with its terms and provisions.
None of the injunction decrees have been attacked by respondents on the ground that they are without support in the evidence. It must therefore be assumed that the evidence supports a finding that each of the respondents was violating, or threatening to violate, the restrictions as the trial court interpreted them. The points of error presented by the respondents in their brief in the Court of Civil Appeals, sustained by that Court, attacked the decrees as being erroneous, as a matter of law, in so far as they enjoined the various respondents from renting a room or rooms upon their premises. The argument was that the restrictions in the trust deed did not prohibit the renting of rooms, and that the trial court erred in entering decrees which assumed they did. It was on that law question that issue was joined on appeal.
On original submission we said that the spirit and reasoning of the many authorities on the general subject “lead to the conclusion that the renting of a room or rooms in a private residence, which is merely incidental to its use as a family residence, does not Violate a restriction limiting the use of the property to a single-family residence.” The first part of the several *520decrees "which prohibits the several respondents from renting a room or rooms is therefore patently erroneous as a mátter of law. -Its language is broader and its legal effect is more restrictive than the law ■authorizes. The last part of the injunction decrees does no more than restate the terms of the property restrictions contained in the trust deed as they were interpreted in Pardo v. Southampton Civic Club, Tex.Civ.App., 239 S.W.2d 141, writ refused, and Rudy v. Southampton Civic Club, Tex.Civ.App., 271 S.W.2d 431, writ refused, n. r. e.
The Court of Civil Appeals correctly reversed the trial court’s judgment because of the erroneous inclusion in each of ■the decrees of a prohibition against any and all renting of rooms. We have concluded, however, that judgment should not have been rendered for respondents. All of- the consolidated cases were obviously tried on a wrong theory. Under such circumstances it is not only proper but better serves the interests of justice to remand for re.trial. Rules 434 and 505, Texas Rules of Civil Procedure; London Terrace, Inc. v. McAlister, 142 Tex. 608, 180 S.W.2d 619, 620-621; Eaton v. R. B. George Investments, Inc., 152 Tex. 523, 260 S.W.2d 587, 591-592.
If and when the several cases are retried, whether on the same or other evidence, it will be the duty of the trial court to determine whether any of the several defendants are violating or threatening to violate the restrictions contained in the trust deed as we have interpreted them. Proper injunction decrees should then be entered only against those of the defendants who are.
The nature and extent of the use of his ■premises for purposes other than as a residence for the members of his family and .his domestic servants will determine whether an injunction decree is to be entered •■against a particular defendant. If the evidence establishes as a matter of law, or if ■ the trial court finds as a fact on conflicting evidence or as a reasonable inference from the evidence, that a particular defendant is operating a rooming or boarding house on his premises as a business, or is using an establishment on his premises, separate and apart from his dwelling house^for renting as a source of financial gain, or is renting space to others in his dwelling house as a separate house-keeping unit, or is using his dwelling house primarily as a source of financial gain rather than as a residence for himself and his family and domestic servants, that activity should be enjoined. On the other hand, if the evidence establishes as a matter of law, or if .the trial court finds as a fact on conflicting evidence or as a reasonable inference from the evidence, that only the dwelling house on the premises of a particular defendant is being used as a place of residence and that it is being used primarily as a residence for the owner and his family and domestic servants, no injunction should issue against the incidental renting by the defendant of a room or rooms to others.
Petitioners’ motion for rehearing is granted and our judgment entered herein on December 31, 1958 is set aside. In so far as the judgment of the Court of Civil Appeals reversed the judgment of the trial court the judgment is affirmed, but in so far as the judgment of the Court of Civil Appeals rendered judgment for the respondents it is reversed and the cause is remanded to the trial court for trial in keeping with this opinion. .
Costs in this court are divided equally between the parties.
The parties will have -fifteen days from-this date in which to file further motions . for rehearing.
HAMILTON, J., not sitting.