ON PETITION FOR REHEARING. Appellee in support of his petition for rehearing calls attention to the fact that under the demurrage rules of appellant, private cars on private tracks are not 3, 4. subject to demurrage charges. While this fact was called to our attention on oral argument, we overlooked it, as nothing was said about it in appellee's brief. While the court will not search the record to reverse, it will search the record to affirm. And when, before a decision, attention has been called *Page 306 to a proposition that will lead to an affirmation, it is our duty to affirm even though nothing is said in appellee's brief concerning the matter. The evidence shows that the tank-car in which the oil was shipped was a private car, but there is no evidence showing that it was on a private track. Appellee contends the burden was on appellant to prove that the car was not on a private track, and that the decision is, therefore, not sustained by sufficient evidence and is contrary to law. We hold, however, that a party relying upon an exception, whether it be to make out his cause of action or defense, has the burden to allege and prove the facts necessary to bring him within the exception and that the burden was on appellee to answer and prove that the car was on a private track, so as to except it from being subject to the rules providing for demurrage charges.
In Maxwell, Exr., v. Evans (1883), 90 Ind. 596, 46 Am. Rep. 234, cited by appellee, the appellant sued the appellees who had been operating a private bank, for fraudulently converting certain bonds to their own use. Appellees answer alleged discharge in bankruptcy, that plaintiff had filed her claim in the bankruptcy proceeding and had received a dividend thereon, thus discharging appellees from further liability. This answer was held good on demurrer. There being no reply of denial, the court, in holding the answer sufficient to withstand the demurrer, stated that a party who seeks to bring his case within the statute must negative an exception. So, in the instant case, if appellee had answered that the car was privately owned and stored on a private track so that it was not subject to demurrage charges, appellant would have been called upon to negative that issue by reply. Beecher v. Peru Trust Co. (1912),49 Ind. App. 184, 97 N.E. 23, is no longer of controlling influence. SeeHumphry v. City Nat. Bank *Page 307 (1921), 190 Ind. 293, 130 N.E. 273; Ashbaucher v. Price (1924), post 604, 145 N.E. 775.
Petition overruled.