(dissenting). I concur in the holding that the record of the weighmaster’s office at Duluth should have been admitted, but cannot concur in the conclusion that a new trial should be denied.
It is clear to me that the exclusion of the record referred to may have been 'highly prejudicial to appellant. He may thereby have been prevented from furnishing the very proof that in effect is held by my associates was necessary to have made his case. He had shown the quantity of flax delivered the defendant at Barlow, and had attempted to prove a smaller quantity delivered at Duluth; but the trial court rejected the evidence of the latter. The opinion holds that such evidence should have been received; but that, if if had been admitted, defendant would not have made a prima facie case, because there was no proof of actual leakage. After the denial of the plaintiff’s right to show the difference in weights, it would have been an idle ceremony for him to have offered proof of actual leakage from the car. This court, in the absence of any showing in the record, cannot assume that plaintiff might not 'have been able to show the very facts held to be essential to make his case. He should have the opportunity to malee proof of such facts if he can do so. The record does not present the question that would be presented if plaintiff had furnished his proofs in other respects before the record) evidence was excluded. As to whether, with the record evidence in the case, appellant would have made a prima facie case, I express no opinion.