ON REHEARING.
SAYRE, J.In the original opinion in this case the result was made to turn upon the burden of proof, and in the application for rehearing much argument is given by appellant to its proposition that the matter set up in its special pleas was provable under the general issue, which is to be conceded, and that the burden of proof was upon appellee to show that the delay complained of was in fact the delay of appellant in performing its part of the contract of affreightment. We held, without comment, that the burden was upon appellant to show that the delay had not occurred in its performance of its part of the contract. This conclusion as-to the location of the burden of proof is based, not upon the pleading, but upon the undisputed fact that appellant was in possession of the shipment under the contract and a finding that a delay did occur to appellee’s injury. This conclusion is in accord with the authorities generally.—Central of Ga. v. Chicago Varnish Co., 169 Ala. 187, 53 South. 832.
Application overruled.