The opinion
ON REHEARING.
(15) The appellant, in the brief and argument filed on submission, insisting that the court erred in refusing the affirmative charge as to the first count of the complaint, requested by it, says; “There is no testimony whatever to sustain the averments *429 of this count. It cannot be contended that the plaintiff R. S.' Dickson was a party to any contract, as he was not there at the time the tickets were purchased, but had gone home two or three days before.”
As said in the original opinion, the evidence shows that McCurdy and Dickson were joint owners of the property involved in this suit; that McCurdy bought all the tickets and arranged for the transportation of the dogs, and in so doing acted for himself and his copartner in the ownership of the dogs; and in legal effect the contract for the transportation of the dogs was with the plaintiffs or for their sole benefit, and they were authorized to sue for its breach of duty growing out of the contract.
As we understand appellant’s insistence on the rehearing, it is that the averments of the first count import a special express contract for the carriage of the dogs, and that the only contract shown was one implied by law from the transaction. This contention is too technical. When the language of the complaint is subjected to a reasonable construction, we hold that it avers in legal effect that the defendant undertook to transport the plaintiff’s dogs and to exercise reasonable diligence in their transportation and in protecting them from injury; that the evidence tends to support the count; and therefore the affirmative charge as to this count was properly refused.
The other points urged in brief are disposed of in the original opinion.
Application overruled.