ON MOTION EOR REHEARING.
In the opinion in this case it is stated that the petition showed on its face the defect of party plaintiff if there was such, in which we were incorrect and the inadvertence is made the basis for the motion for a new trial. The error was not material, as all the evidence showed that the plaintiff was the owner of the cattle, and it was shown beyond dispute that the agent had no authority from him to ship them in his, the agent’s name, as consignor and consignee, and for that reason plaintiff was the proper and necessary party.
*300Notwithstanding the consignor is the proper party-to bring suit on a carrier’s contract for transportation of property, it held, however, where the consignor has no interest in the goods he will be confined to assumpsit and cannot sue in an action ex delicto for breach of duty by the carrier. [Central American S. S. Co. v. Railroad, 128 S. W. 822; Nelson v. Ry. Co., 72 Pac. R. 642; Whittenton Mfg. Co. v. Memphis & O. R. Packet Co., 21 Fed. 896.]
As the action is to recover damages for a breach of duty it is an action ex delicto, the- plaintiff was the only party who could maintain it. Motion for rehearing overruled.