¶1The amended petition set up a new cause of action, and as the plaintiffs in error had no notice, actual or constructive, thereof, it was error to render a judgment founded on the matters alleged in the amendment. (Furlow v. Miller, 30 Tex., 29; De Walt v. Snow, 25 Tex., 321; Morrison v. Walker, 22 Tex., 19; Weatherford v. Van Alstyne, 22 Tex., 22.)
¶2The assignment of errors fails to specify this as a ground of error, but it is one which is apparent on the record, and is so fundamental, that the court will act upon it, though not assigned.
¶3The judgment is reversed and the cause remanded.
¶4Reversed and remanded.