(dissenting).
As the opinion in substance concedes, we have reached a highly anomalous result through resort to the most technical of legal rulings. Defendant concededly committed a wrong in issuing false bills of lading; the fact that it may have felt compelled to its course by the exigencies of business competition does not lessen its responsibility to plaintiff, which clearly suffered loss. True, the amount of the loss was never fixed; and here plaintiff’s counsel must bear some responsibility for the contretemps. For he stuck rigidly to his conception of the law that the burden of proof was on the defendant, even after the court had ruled otherwise. But I do not believe it a cardinal sin that a lawyer, faced with trial exigencies accentuated by an unsympathetic judge, fails to make a quick mental adjustment involving a shift of legal position. Further it is not our practice to penalize a client throughout both trial and appeal for tactical errors of his counsel. Here to sustain the result we are turning back the use of ordinary business practices in court in rejecting photostat copies of books of account duly verified by the testimony of a live witness. And so an inequitable decision is upheld by an evidence ruling out of keeping with modern business life.
Although perhaps we might be able to compute the damage, I think it entirely proper to remand this case for further proceedings below, particularly as certain defenses of illegality were never reached. But elementary considerations of fairness and equity require at least a remand, and not a final judgment for the defaulting defendant. And if there is any question as to the authenticity of the photostats — none is really indicated —it can be settled with exactitude and justice on such remand. It is to be noted that the trial judge rejected the photostats not in the exercise of some “discretion” as to their falsity, as the opinion suggests, but because he held copies inadmissible — a decision erroneous according to modern standards, as the opinion concedes. I would reverse and remand.