¶1 after stating the case: The charge of his Honor, placing the burden on the plaintiff to prove the item of $112, is erroneous and entitles the plaintiff to a new trial. It would have been correct but for the fact that the defendants allege in their answer that this sum was paid by the plaintiff out of the proceeds of the sale of the tobacco, at the request of the defendants, and the plaintiff admits this in his reply.
¶2*70 Being a fact admitted by tbe pleadings, it was not in controversy, and tbe burden was not on tbe plaintiff to establish it.
¶3 Tbe error was tbe result of an inadvertence, as is shown by tbe statement made by tbe presiding judge, which is attached to tbe case on appeal. He says that be overlooked tbe answer of tbe defendants as to tbe $112, and that bis attention was not called to it.
¶4 As tbe item is admitted, we would direct it to- be credited on tbe amount recovered by tbe defendants, instead of ordering a new trial, if we bad any means of ascertaining tbe decision of tbe jury with reference to it; but we cannot say, on tbe record, that it has not already been allowed, and as tbe question was submitted to them erroneously, we must order a new trial.
¶5 New trial.