This was a suit by appellee against appellant, filed May 23, 1912, praying for cancellation of a certain deed executed by her to' appellant, dated June 17, 1905, conveying 37% acres of land, in Knox county; the consideration recited being “§100 cash and other valuable consideration.” She alleged that said conveyance was procured through certain false and fraudulent representations made by one R. L. McCaulley, alleged to have been the duly authorized agent of appellant, which was a copartnership composed of seven named parties. She alleged, in substance: That said McCaulley, as such agent of appellant, had represented to her that, .if she would execute said deed, the appellants would cause to be erected in the town of Knox City, the warehouses and shops of the Kansas City, Mexico & Orient Railway Company, of which railway company McCaulley was alleged to be the vice president, and would select, for such purposes, the ground upon which said roundhouses and shops would be built That no consideration other than said promise was paid appellee, and that she relied on such representations, and that said conveyance was obtained by fraud. She further alleged : That said railway company did not locate said roundhouses and shops at Knox City. That it did not permanently locate the same until January, 1912, when it located them at -San Angelo, and therefore she did not discover the fraudulent character of said representations alleged to have been made by McCaulley, as the agent of appellant, until said date. She alleged that in case she was mistaken in her allegations of fraud, and that if in fact it was the intention and purpose of appellants, in securing said land, to locate said railway improvements at Knox City, then, in view of the fact that nothing had been done in pursuance of said purpose, no money had been expended to such end, and, in view of the fact that .said railway company was insolvent, that the consideration for the conveyance of said land had totally failed; and hence she prayed that said deed be canceled.
Appellant answered by general demurrer, and by specially interposing the two and four years’ statutes of limitations, and specially pleaded that if any such promises and representations were made by McCaulley, which appellant denied, they were unauthorized and not within the apparent scope of his authority, and such that no ordinarily prudent person would have relied on. It further denied that it had any connection with or *940control over the said Kansas Oity, Mexico & Orient Railway Company.
Eor the purpose of the disposition of this appeal, sufficient pleadings have been given hereinabove.
[1] In its first assignment, appellant complains of the admission of the testimony of appellee, in which she states that one R. D. Goree told her that, if she would execute the deed to the land in controversy to appellant, they would get the roundhouses and shops, and, if she did not, Carney (another town) would.
Mrs. Reeder testified that she never had any conversation with Mr. McCaulley about the matter, and that, in executing the deed to the land in controversy, she relied on the statements made to her by Goree.
We think this evidence was inadmissible, under the pleadings of plaintiff. She having alleged that the representations were made to her by McCaulley, it constituted a variance between the allegata and probata to show that said representations so relied on were made by some other person.
“The object of pleading is to apprise the court and the opposite party of the facts upon which the pleader intends to rely as constituting his cause of action or ground of defense before the trial is commenced, in order that each party may prepare himself in time with his evidence for the contest, and neither can be held legally bound to answer grounds not averred in the pleadings.” Mims v. Mitchell, 1 Tex. 443.
Also might be cited Moore v. Kennedy, 81 Tex. 144, 16 S. W. 740, Lemmon v. Hanley, 28 Tex. 227, and numerous cases cited in Michie’s Digest, Texas Civil Cases, vol. 13, p. 1168.
[2] While it is true that, where incompetent evidence has been admitted, a reversal will not be required unless injury 'is shown, and especially is this so where the cause has been tried by the court without a jury, but, in order to render the admission of such evidence harmless error, it must appear that there was competent evidence sufficient to authorize the rendition of the judgment. Beham v. Ghio, 75 Tex. 90, 12 S. W. 996; Melton v. Cobb, 21 Tex. 543; 1 Greenleaf on Evidence, § 49. But we are of the opinion from a careful consideration of the statement of facts and of the findings of fact, filed by the" trial court, that such findings must have been based in part upon evidence which was clearly incompetent, and that there is not competent evidence in the record sufficient to support some of the necessary findings.
The court finds that R. D. Goree was also the agent of the Orient Land Company, and that in making the representations to Mrs. Reeder, alleged to be fraudulent, said R. L.-McCaulley was “acting through and together with R. D. Goree.” There is no evidence in the record, so far as we have been able to discover, to sustain such a finding; and, since it appears from such finding that the court admitted the evidence complained of on the theory that, in making the alleged representations to Mrs. Reeder, said Goree was acting as the agent of the Orient Land Company, and presumably of said McCaulley (i. e., the agent of the agent), the injurious character of such evidence becomes more apparent.
Therefore we think that this assignment must be sustained, and likewise the second and third assignments, which involve the same question.
[3] The fourth assignment complains of the action of the court in admitting the testimony of the witness W._M. Sandifer, and in considering the same in determining the issues, wherein said Sandifer testified to certain statements of said McCaulley, not made in the presence of appellee, and which he (Sandifer) did not communicate to her, the substance of which was that, if the citizens of Knox City would give appellant some additional land, the Orient Railroad would locate the shops and roundhouses in Knox City. This evidence was clearly inadmissible, in the absence of any testimony that the same was communicated to appellee, and we find none in the record. Therefore the fourth assignment must be sustained. The fifth, sixth, and seventh assignments must be sustained for the same reason.
Appellant’s assignments 8 to 13 attack the court’s findings of fact, which assignments it is not necessary to discuss, inasmuch as the errors complained of, if any, will not likely occur on another trial.
[4] Further assignments complain of the action of the court in the rendition of the judgment; and in the seventeenth assignment it is urged that the trial court erred in not rendering judgment for appellant, and this court is asked to reverse the judgment of the court below, and render judgment for appellant, on the ground that, as claimed, appellee has failed to show fraud, and at most only a breach of a covenant, but this request we do not feel it is our duty to grant. If R. 'D. Goree was in fact the agent of the appellant, as found by the court, and as there is some evidence tending to show, then in another trial, with amended pleadings, the testimony of Mrs. Reeder as to statements made to her by him, which she claims induced her to execute the deed, would become admissible and material, and we feel that justice, perhaps, would not be done by our rendering judgment herein.
For the reasons given, the judgment of the trial court is hereby reversed, and the cause remanded.
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