OH MOTIOH FOE EEHEABIHG.
Mr. Chief Justice PHILLIPSdelivered the opinion of the court.
It was erroneously stated in the opinion of the late Chief Justice rendered upon the original hearing of the case, that the smaller of the two policies of insurance involved,—the one for $200, had expired before the fire occurred. This policy did not expire, according to its terms, until about three months after the destruction of the property by fire. Hnder the findings of the jury, however, -this circumstance does not in our opinion relieve the plaintiff in error of liability for the loss sustained by Duncan because of the worthlessness of the policy.
We should possibly advert to one other matter. It is again urged by the plaintiff in error in his motion that the judgment in Duncan’s favor for the loss sustained by him on account of Diamond’s failure to comply with his agreement to renew the former’s policies, as found by the jury, ought now to be reversed because of the charge on the measure of dam*261ages, and the refusal of his requested instruction for a peremptory verdict. The contention is that the charge did not require that the jury in assessing the damages should deduct from the amount of the policies the amount of the premiums thereon, or the cost of the insurance if Diamond had performed his agreement. It appears that Duncan had not paid the amount of the premiums; and we agree that his measure of damages Avas the amount of the policies, less the premiums or cost of the insurance. We accordingly held on the original hearing that Diamond would have been entitled to such credit in the assessment of the damages, if it had been pleaded by him; but inasmuch as he did not plead it, nor prove it, he was in no position to complain.
We are still inclined to the view that this was defensive matter and ought to have been pleaded. Right-of-Way Oil Co. v. Gladys City Oil, etc., Co., 106 Texas, 94, 157 S. W., 737, 51 L. R. A. (N. S.), 268. It should not be overlooked that the policies were in fact issued by Diamond as the insurance agent, and the cause of action arose upon his agreement, substantially, to maintain the insurance on the property in that amount, the worthlessness of the policies within his knowledge, and his failure to notify Duncan that they had become worthless. If Duncan had not paid for them, Diamond was, of course, entitled to offset the amount of the premiums; but we think it was incumbent upon him to make the plea. ■
If the proof was admissible in mitigation of the damages on the general issue, without the necessity of a pleading, it is clear that the burden was upon Diamond to make it. He was an insurance agent. Duncan was not. The cost of the insurance or the amount of the premiums was a fact peculiarly within his knowledge. Certainly he was in better position to know what the amount was than Duncan. It is elementary law that the burden of proof is on him who best knows the facts, or in whose knowledge the fact peculiarly lies. I Greenleaf on Evidence, sec. 79; Byan v. Railway Co., 65 Texas, 13, 57 Am. Bep., 589. In his brief in the Court of Civil Appeals Diamond contended that there was no sufficient proof to sIioav what the amount of the premiums was, and that therefore the alleged error could not be cured by remittitur. Since the burden was upon him to make the proof, and, according to his contention,-there was no proof on the question, the charge of the court was not erroneous in failing to submit it. The requested instruction for a peremptory verdict proceeded upon the theory that Duncan had failed to make out his case in having omitted to make this proof; and for the same reason the trial court correctly refused it.
This case Avas tried in January, 1910. The judgment in Duncan’s favor was affirmed in the Court of Civil Appeals on June 3, 1911. A writ of error was granted by this court October 5, 1911. The case was decided here, affirming both judgments, January 27, 1915. At best, the amount of the premiums was trivial in comparison with the amount properly in controversy. We overrule the contention of the plaintiff in error on the question for the reasons Ave have stated. But if the question *262were not subject to be thus disposed of upon a ground that is clear and satisfactory,, it would in our opinion amount almost to- a travesty to now reverse these judgments and order a .new trial on account of a small error in the amount of the verdict. j
With the correction noted in the original opinion the motion for re- j hearing is overruled. . j