
    Orange F. Green, et al., Respondents, vs. Indianapolis & St. Louis Railroad Co., Appellant.
    1. Judgment affirmed.
    
      Appeal from St. Louis Circuit Court.
    
    
      C. M. Whitney, for Appellant.
    
      Luden Eaton, for Respondents.
   Adams, Judge,

delivered the opinion of the court.

This was an action against the defendant, as a common carrier, for violating a contract of affreightment in failing to deliver fifty barrels of boiled cider, in good order and condition. The plaintiffs claimed one hundred dollars damages.

The case was submitted to a jury for trial, and on the trial it was agreed that the only defense relied on, was that the eider had fermented. It was agreed, also, that there were only two barrels in dispute. . The cider was all in apparent good order when received by the defendant. The two barrels referred to were delivered to the plaintiff with the heads bursted out, leaving only about a pint of cider in each barrel. The evidence, on the part of the plaintiff, was that the remainder of the cider in the two barrels in dispute, was sweet, and that it had not fermented.

The plaintiff’s evidence also tended to prove that the cider in dispute had been boiled down, five barrels into one, and that when cider is thus reduced, it will not ferment.

There was no evidence given on the part of the defendant, that the cider in dispute had fermented. The only evidence given was, that cider boiled three barrels into one, would ferment, and the opinions of his witnesses were, that boiled cider would ferment. None of the defendant’s witnesses had seen this cider, or gave any testimony about it. There was no dispute as to the value of the cider. On this evidence, the court gave the following instruction to the jury, which was excepted to by the defendant: “The jury will find for the plaintiffs, and they will assess the damages not exceeding one hundred dollars, at the value of the boiled cider in St. Louis, on the 2nd day of November, 1870, and compute interest at the rate of six per cent, per annum, from July 25, 1872, to this date.”

This suit was commenced on the 25th of July, 1872. The jury found a verdict for the plaintiff, and the defendant filed a motion for a new trial, which was overruled, and final judgment entered on the verdict. This judgment was affirmed by the General Term, and the defendant has appealed to this court.

The onus to prove the defense relied on, was upon the defendant. There was no evidence given tending to prove that the cider in the two barrels in dispute had fermented. The plaintiff’s case, therefore, stood admitted on the record, except as to the amount of damages.

There was no error in directing the jury to find for the plaintiffs. As this is the only point raised by the record, the judgment must be affirmed. Judgment affirmed.

Judge Wagner absent; the other judges concur.  