On Motion for Rehearírig.
Counsel for appellee urgently but courteously insists that this court erred in its original opinion as to the disposition of the case and the conclusions therein reached. It is claimed: First, that this court erred in sustaining the group of assignments alleging er*941ror because of tbe admission of certain testimony which was held to constitute a variance between the pleadings and proof. We are cited to the language used by the Indiana Appellate Court in Colt v. Lawrenceburg Lbr. Co., 44 Ind. App. 122, 88 N. E. 720, as follows:
“There is no difference in law between, a charge that a contract was made directly with a party and a charge that it is made with his agent”
—as sustaining appellee’s contention that the testimony of Mrs. Reeder, as to representations claimed to have been made to her by R. D. Goree, was admissible under the allegations in the petition that the representations on behalf of defendant company, alleged to be false and fraudulent, were made by R. L. McCaulley. In the first place, the proposition enunciated by the Indiana court is perhaps too broad as an accurate and yet comprehensive statement of the principle of law involved, and must be understood with reference to the particular state of facts involved in that case. It was a suit bn a contract against a married woman for material and labor alleged to have been furnished her for the construction of a greenhouse on her premises. She answered by a general denial, and by the further allegation that the labor and material was furnished her husband, who was not authorized by her to contract for same. Plaintiffs, in supplemental pleading, alleged that defendant’s husband was her agent, and therefore she was bound by his contracts undertaken with her knowledge and consent and, as it appeared, for her benefit. Defendant urged that this supplemental pleading constituted a departure or variance from the allegation in the original petition. In overruling this objection the court used the language quoted. In the sense and connection used, it was a correct, apt enunciation of the law.
[5] In the instant case, plaintiff nowhere alleged fraud or misrepresentations, except as involved in and constituted by the alleged misrepresentations of McCaulley. No general allegation of fraud or misrepresentations by defendant was made. Acts or conduct relied upon as constituting fraud must be specifically averred. Austin v. Talk, 20 Tex. 165; Hendrix v. Nunn, 46 Tex. 141, 149; Baines v. Mensing Bros. & Co., 75 Tex. 200, 12 S. W. 984. Pacts and circumstances must be set forth to show the alleged fraud or mistake entitling plaintiff to equitable relief. Daughtrey v. Knolle, 44 Tex. 450-455; Adams v. Huffmaster, 42 Tex. 15, and cases cited supra. Where a plaintiff seeks the cancellation of a conveyance as induced by certain false and fraudulent representations made by defendants, only such representations and promises as are alleged and relied on can be considered by the jury. Touchstone v. Staggs, 39 S. W. 189.
It is true that, where there is no question of the agency of a person and his authority to act for the defendant, proof of the acts of such person within the scope of his agency supports an allegation that the acts were those of the defendant. Baldwin v. Polti, 45 Tex. Civ. App. 638, 101 S. W. 543. In the last-cited case the evidence as to the acts of the agent were admitted without objection, but the alleged, variance arose upon the charge of the court and the allegation in the petition. But where the plaintiff does allege the name of the agent, whose words or conduct are relied upon to bind defendant, and especially so in a stdt based upon alleged fraud and deceit, and predicates his entire case upon this allegation of agency, it seems to us, under the authorities, he is precluded from introducing testimony of the statements or acts of another, sought to be shown as agent of defendant. Peyton et al. v. Cook, 32 S. W. 781; Lewis v. Hatton, 86 Tex. 533, 26 S. W. 50; Guffey v. Moseley, 21 Tex. 408.
In the case of Peyton v. Cook, supra, the Court of Civil Appeals of the Fifth District of Texas, speaking through Justice Rainey, and in referring to the case of Lewis v. Hatton supra, says:
“Whatever may have been the decisions of this court heretofore on this point, the case above cited, in our opinion, fully settles the doctrine that where a wrong is done by an agent, although the principal may be liable therefor, yet, in order to admit proof as against him, it must be alleged that the act was done by his agent. The mere allegation that the act was done by the principal is not sufficient to warrant a recovery if the wrong was done by the agent.”
In the ease of Stevenson v. Cauble, 55 Tex. Civ. App. 75, 118 S. W. 811, this court, speaking through Justice Dunklin, and quoting from the syllabus, held:
“Where a vendor sought cancellation of the contract for false representations as to the location of the land, alleged to have been made by the vendor, evidence that the representations were in fact made by the vendor’s agent constituted a variance” — citing, in addition to the authorities already cited in this opinion, Arndt v. Boyd, 48 S. W. 771.
If, then, the evidence of an act done by an agent constitutes a variance, when such act is -alleged to have been done by the principal, a fortiori, the allegation that the act was done by one agent and the proof that it was done by another, would constitute a variance between the allegata and probata. Variance, as used in this connection, means a material difference — one that would probably surprise and mislead the adverse party. It seems to us that the case at bar affords rather an extreme instance of the application of this principle, one in which the court would be justified in indulging in the presumption that the defendant, in the court below, was injuriously affected. Plaintiff had pleaded the fraudulent representations upon which she relied for cancellation of the deed to have been made by R. L. McCaulley, a nonresident, whose deposition had been taken, and therefore what his testimony would be was known to both parties when they announced for trial. He had denied making *942the representations alleged, other than those contained in the written contracts. Upon the trial, the appellee, in order to establish her case, resorts to proof of alleged misrepresentations made by another, one who, according to her own testimony, was her confidential man, and one who had, immediately before she testified, been introduced by her as a witness in her behalf; she thus vouching for his credibility and truthfulness. To support the Judgment, the trial court found it necessary to find, or at least did find, that said Goree, appellee’s own agent and witness, was the representative and agent of the appellant, and that MeOaulley, as the agent of appellant, in making the misrepresentations acted through and together with said Goree. Consequently we feel that we must adhere to our conclusions reached in the original opinion in sustaining the first group of assignments. As our former holding must be adhered to, we do not feel that any useful purpose would be subserved by a further discussion of the argument advanced by appel-lee in her motion for rehearing.
Motion for rehearing is overruled.