(after stating the facts as above). Gossett, appellant, insists the- testimony demanded that judgment be rendered in his favor for $738.75 and for lot 20, in block H, and lots 3 and 4, in block I, and in favor of W. R. Gossett for lot 21, in block H. This insistence is based on the contract of November 14, 1912.
[1] It is clear that the contention, at least so far as it applies to the lots, should be overruled; for the court was without power, in the absence of a contract on Mrs. Vaughan’s part, executed with reference to the requirements of the law, to divest her of the title to the lots and vest same in appellant and W. R. Gossett. Munk v. Weidner, 9 Tex. Civ. App. 491, 29 S. W. 409. In the case cited the court said:
“It would be a novel doctrine which, in the absence of positive fraud, would authorize a court to enforce specific performance of an oral agreement, or a written one not privily acknowledged, of a married woman, to convey her separate property in lands, which she could herself only convey in the manner and form provided by statute.”
It was not pretended that Mrs. Vaughan had agreed either verbally or in writing to convey the lots to appellant and W. R. Gos-sett, but merely that she had ratified a contract to do so made by her husband for her benefit.
*936[2-4] As to tlie contention that judgment should have been rendered for appellant against Vaughan for the $733.75 mentioned in the contract of November 14th, it may be that the action of the court should not be sustained on the ground of misconduct on the part of appellant in the particulars set out in the statement above, because it appeared that Vaughan knew of such conduct at the time he entered into that contract. It may be, also, that the action of the court should not be sustained because of the absence of testimony showing that appellant had complied with his undertaking under that contract to place in escrow all deeds, papers, etc., held by him relating to the sale of the lots. We think it unnecessary to determine those questions, because we think it is a sufficient answer to the contention to say that appellant’s suit was not on that contract, but on the contract of September 6, 1912, as will be readily seen by referring to the allegations in his original petition set out in the statement. Plaving declared on the contract of September 6th, appellant was not entitled to recover on proof of a breach of the contract of November 14th. It may be true that the contract of November 14th was sufficiently declared upon in the supplemental petition, but that was not the place to set up the cause of action relied upon, and we do not think the court was bound to look to that petition and treat it as a basis for his judgment. Rules 4 and 5 for the Government of District Courts (142 S. W. xvii); Ins. Co. v. Camp, 64 Tex. 521. That appellant was not entitled to recover on the contract of September 6th, which he declared on, is plain. By the terms of that contract the commissions he might become entitled to were to be paid out of sums collected by him of purchasers of lots, and in no other way.
The judgment is affirmed.
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