On Motions for Rehearing.
Appellees and appellant United States Fidelity & Guaranty Company have each filed a motion for rehearing.
Appellant United States Fidelity & Guaranty Company complains of the failure of this court to pass upon its assignments of error which relate to the action of the trial court in refusing to give its peremptory instruction, and to the action of the trial court in submitting the case on special issues without submitting any issue presenting its defensive matters, and to the action of the trial court in setting aside its original judgment *105in its favor and thereafter entering judgment against it in favor of appellee.
The law is well settled that the trial court is required to submit, separately and distinctly, all defensive matters pleaded by the respective defendants upon which there has been submitted any evidence, and it was error for the trial court to refuse to submit the defense pleaded by the appellant United States Fidelity & Guaranty Company on which evidence had been offered. It was further error for the trial court to refuse to submit any defensive matters of the surety company and then render judgment against it.
Appellant surety company further complains of the action of the trial court in refusing to sustain its exceptions to appellees’ pleading, in so far as they sought to recover against it for $2,409, which it claimed to have paid appellants Brammer & Wilder for the policing of the roads, and the $78,814.50 which the county claimed to have overpaid Brammer & Wilder. We sustain these assignments. Clearly, the county was not entitled to recover from the surety company any money it had paid Brammer & Wilder not covered by the contract. This question has been definitely settled in favor of the surety company. Hill County v. Bryant & Huffman (Tex. Civ. App.) 284 S. W. 520, and authorities there cited, which holding was specifically upheld by the Supreme Court in the same case, 16 S.W.(2d) 513. In no event would the surety company be liable for any sums of money that the county paid either for the benefit of or directly to Brammer & Wilder which was not paid under the terms and provisions of the contract.
The surety company strenuously contends that the cause should be reversed and rendered so far as it is concerned because of the material changes that were made in the contract, and because of the failure of the county to retain the 10 per cent, retainage required to be kept under the terms thereof. These matters involve questions of fact. They are primarily for the determination of the trial court and jury. The law is well settled that, if the county and contractors made material changes in the contract which were not authorized to be made under the terms of the contract for which the surety company gave its bond, or if the county failed to withhold the percentage required to be held under the terms of the contract, same would release the surety. Lonergan v. San Antonio Loan & Trust Co., 101 Tex. 63, 104 S. W. 1061, 106 S. W. 876, 22 L. R. A. (N. S.) 364, 130 Am. St. Rep. 803; Hess & Skinner Engineering Co. v. Turney, 110 Tex. 148, 216 S. W. 621; Bullard v. Norton, 107 Tex. 571, 182 S. W. 668; Wilson v. J. W. Crowdus Drug Co. (Tex. Com. App.) 222 S. W. 223.
Appellees in their motion for rehearing complain of our failure to determine whether they were bound by the various orders of the commissioners’ court and the approval by said court of various estimates, because of a custom that existed in the commissioners’ court under which said court passed said orders and approved said estimates by reason of the approval of Commissioner Kennedy, in whose precinct the work was being done, since it was alleged that Kennedy was in the conspiracy with the other parties to defraud the county. The contract for the building of the roads specifically provides in paragraph 3.34(b): “It is mutually agreed between the parties hereto that no estimate or payment made under this contract, except the final estimate or final payment, shall be conclusive evidence of the performance of this contract either wholly or in part against any claim of party of the first part, and then not until the lapse of thirty days after the acceptance of the work by the party of the first part, and no payment shall be construed to be an acceptance of any defective work or improper materials nor a release from any claim for damages.”
It is the fundamental law that any order or judgment obtained by or from a court through fraud is voidable, and same is not res adjudi-cata between the parties and may be set aside upon the establishment of the fact that same was obtained through fraud. If as a matter of fact a fraud was perpetrated upon the commissioners’ court, either by a member of said court or by an outsider, it would have the same effect as though a fraud were perpetrated upon a judge sitting in the trial of a case. Where fraud has been practiced and a judgment has been obtained by reason thereof, it has been universally held by our courts ■that same will be set aside upon the establishment of said fact. Buchanan v. Bilger, 64 Tex. 589; De Garcia v. S. A. & A. P. Ry. Co. (Tex. Civ. App.) 77 S. W. 275 (error refused); Richmond v. Sangster (Tex. Civ. App.) 217 S. W. 723 (error refused); Hayes v. Texas Employers’ Insurance Ass’n (Tex. Civ. App.) 254 S. W. 501.
Both motions for rehearing are overruled.