-(dissenting) : There were two sides to this lawsuit. I can not agree that the plaintiff’s evidence was admitted for the purpose of showing that he had not been inefficient in the management of the business. That he had not been efficient was a matter of defense. It is true, the petition alleges that he had been efficient and competent, but the relief was demanded on the ground that the profits of the business amounted to $779.52, a sum so near the amount stipulated in the contract that equity would regard the condition as substantially complied with. He undertook to show that the profits had amounted to this sum, and *484was permitted to introduce secondary evidence for that purpose, without any attempt to procure the best evidence; and other incompetent testimony was admitted in support of the same contention. It is true that he stated that in his opinion the profits approximated the amount claimed, but there was no competent evidence offered showing that the profits of the business amounted to as much as one dollar. The plaintiff knew nothing of the cost of the material, except in a few instances; he knew nothing about the amount required by the firm to keep contract work in repair, and it was impossible for him or for the jury, from his evidence, to determine that there had been any profits. He testified to the amount expended for labor during a portion of the time the contract was in force, and he stated that the business, from its nature, was generally considered profitable. Of course, equity would not deny him relief because the profits did not amount to $800, but, on the theory of his petition, it was necessary for him to establish by a preponderance of the evidence that there had been some profits; it was also necessary in order to determine the proper measure of his damages. He may be entitled to recover damages, but the case should be reversed and a new trial ordered because of the errors in the admission of evidence.