ON APPLICATION FOR REHEARING
Blue Streak argues that it never asserted a loss therefore it was error for this court to rely on Hart v. McDonald, 28 So. 169 (La.1900) to hold that it must bear the burden of proving its loss. Yet Blue Streak introduced evidence into the record that not all the bills upon which ILB claimed commissions were paid. By doing so Blue Streak raised the issue of loss. Furthermore, Blue Streak is in the unique position of providing evidence on this issue and for the court to expect ILB to prove whether Blue Streak’s bills were paid or not would be futile.
The joint venture agreement refers to reimbursement of capital contributions only when profits are earned. There was testimony in the trial transcript that ILB had to make cash calls at the time of trial simply to stay in business and it was not yet in a financial position to reimburse capital contributions.
Accordingly, this application for rehearing is denied.
PLOTKIN, J., votes to grant rehearing with written reasons.