*153On Petition eor a Rehearing.
Crumpacker, J.A petition for a rehearing is filed on behalf of appellees, upon the ground that this court misconceived the theory of the complaint. It is very earnestly insisted that the complaint is based upon the written contracts exclusively, and that the parol arrangement set out is pleaded as matter of inducement. It is averred in the complaint that the appellant promised to ship the stock on a certain train, and the breach of obligation is alleged to be its careless and negligent failure to ship it on such train.
We are unable to discover any such agreement in the written contracts, nor can these averments be regarded as matter of inducement.
It is contended, however, that the law made it the duty of the appellant to ship the stock on the first train leaving after its delivery. We can not concur in this proposition. A railroad company is bound to transport property within a reasonable time, but it can not be said, as a matter of law, that this means that the shipment must be made on the first train leaving after the property has been'delivered for transportation.
If the complaint should be construed upon the theory contended for by appellees’ counsel, the result would be the same, because there is no allegation of an unreasonable delay in making the shipment, nor are facts stated from which the law could declare the shipment to have been unreasonably delayed.
In their brief upon the petition counsel say: “ We earnestly insist that it is not fair to the parties, when both admit that the ‘ complaint is founded on the written contracts, for this court to go outside of both briefs, discover a new theory and reverse the cause, although it is admitted that the law is with appellees, if their counsel’s theory had only been right. Even if the complaint is susceptible of two theories, one on an oral apd one on a written contract, if both parties and the \ *154court below treat it as on a written, it is not fair that this court should now adopt a contrary theory.”
We are not advised upon what theory the trial court treated the complaint except the information contained in appellees’ brief, but we do understand counsel for appellant to contend for the construction we gave it in the original opinion. It is said in the original brief in appellant’s behalf: “The appellees further seem to rely, for their right to recover, upon facts outside of the bills of lading, and to that end aver in the complaint, in substance, that on the 24th day of July the plaintiffs had sixty head of cattle at said Columbia City, which they informed defendant they desired to be shipped to the city of Chicago, to arrive there in time for the morning market, on July 25th, and that to have the same taken on the evening freight train leaving Columbia City about 6 p. M., etc.; that the defendant, well knowing plaintiffs’ business, etc., agreed with plaintiffs to haul said cattle on said train, and deliver the same at said Union Stock Yards, on the morning before 9 o’clock A. M. of said 25th of July, and had the plaintiffs sign and enter into their several contracts filed, marked 'Exhibits A,’ 'B,’and ' C.’ This agreement, however, is no where found contained in either of the bills of lading filed with the complaint, and described as ' Exhibits A,’ ' B,’ and ' C.’ On the contrary, these contracts merely show that the cattle were received to be transported to the Union Stock Yards at Chicago, in the usual manner. There is no agreement, or stipulation, to carry them on any particular train, or at any particular time, or to land them in Chicago, in time for the stock market of the 25th of July, or any other day, nor could the plaintiff be permitted to show, or prove, upon the trial, the facts thus averred in his complaint, or to avail himself of them in any way, inasmuch as they are inconsistent with the contract contained in •the bills of lading under which the cattle were carried.”
We understand this interpretation of the complaint to be *155in harmony with the construction given it in the original opinion, but however this may be, the complaint is insufficient upon any theory that can be accorded it.
Filed June 25, 1891.The petition is overruled.