ON REHEARING.
Hire, C. J.Appellant’s attorneys forcibly reargue the questions disposed of, but after a full consideration of them the court finds no reason for changing the decision or opinion. It is insisted that “the court erred in not upholding that clause in the contract which provided .that the plaintiff would waive and release the defendant from any and all liability for or on account of delay in shipping the stock after delivery of the same to the defendant’s agent, and from any delay in receiving this stock after tender of delivery, as set forth in the seventh instruction requested by the appellant and refused by the trial court.
This contention was not specifically discussed in the opinion, because it was thought that it was necessarily disposed of in the discussion of the other issues. It was held on the former appeal of the case that the railroad company exercised reasonable diligence in furnishing facilities and in transporting the cattle to the destination after delivery to it. Had it been held otherwise, then the question on the contract would have been pertinent. After the reversal of the cause, the complaint was amended ,so as to allege negligence in that the station agent induced plaintiff to deliver the cattle to the defendant on the assurance that a train would soon arrive to take away and transport his cattle; and that the plaintiff, relying upon these assurances, delivered his cattle to the defendant to be transported, and they were negligently delayed at Ashdown for a period of twelve hours. The action was then turned into one against the company for misleading assurances given by its agent which induced the shipment, and not for one growing Out of the shipment itself. The contract relating to the shipment, but it went out of the case when the action was predicated upon the false or negligent assurances which were made by the agent which induced the delivery of the cattle to the appellant company. Therefore, no-discussion was called of the contract itself, nor any consideration of its terms, or whether in fact it was a binding contract.
The motion is overruled.