I concur in the judgment of reversal. I do not agree to the statement that the admission of the report of Fleming, referred to in the sixth paragraph of the main opinion, was error. Fleming had testified that the report was made to his superiors in the usual course of his business, and that it contained a correct statement of the total number of pounds of prunes which came into his possession. The report was therefore admissible as a memorandum made at the time of the transaction and in the usual course of business, to show the total quantity of the prunes in question, and the general objection that the report, as a whole, was incompetent, irrelevant, and immaterial, which was the only objection made, was not well taken.
But it was not competent evidence of any other fact, for there was no proof that it was correct in any other respect. *Page 635 In order to determine the amount of damages it was necessary to know the number of pounds of prunes of each of the different grades. There was no evidence of this except that contained in the report, and that was not evidence which could be used for that purpose. The finding as to the amount of damage depended on the calculation to be made from the data furnished by the report, and as it must be excluded for that purpose, it follows that this finding is not sustained by the evidence, and the judgment must be reversed for that reason.
I do not concur in criticisms made in the main opinion with respect to the other rulings of the court.
Henshaw, J., concurred with Mr. Justice Shaw.
Rehearing denied.