#### Toepfer, Respondent, vs. Steer and others, Appellants.

*February 5*

February 24, *1914.*

*Appeal: Harmless errors: Evidence: Refreshing memory: Entire contracts: Substantial performance: Special verdict: Matters omitted: Presumption on appeal: Election between remedies.*

1. Errors which might have tended to reduce a party’s recovery if the jury had found in his favor must he deemed harmless where, under the verdict as found, he was not entitled to any damages.

2. A witness should not he allowed to refresh his memory by using a writing made by another person, unless he knows it to be correct.

*2273. In an action upon a contract for labor and material of tbe value of more than $9,000, it is *held*that the evidence (upon which the jury found that the reasonable cost of remedying the defects in the work would be $100) would fully warrant a finding of substantial performance.

4. Where, in such case, no question as to substantial performance was submitted to the jury and no such submission was requested, a finding of the court that there was such performance will be presumed in support of the judgment.

5. Where, in an action upon a contract for labor and materials, defendants counterclaimed for damages by reason of breaches by plaintiff, and the case was tried on that issue, this constituted an election between remedies, precluding defendants from afterwards insisting that the plaintiff was entitled to nothing because the contract was entire and had not been substantially performed.

Appeal from a judgment of tbe circuit court for Dodge county: MaetiN L. Lueck, Circuit Judge.

*Affirmed.*

Tbe plaintiff contracted to furnish and put in place for tbe defendants certain machinery and equipment for a' malting plant, tbe alleged reasonable value of which material and labor was $9,283.76. It was averred, in tbe complaint that plaintiff bad pei’formed and that there was paid on account all of this sum except $597.89, for which judgment was .asked. Among other articles furnished were four “steep tanks” and a “set of cold-air blinds for the kiln furnace.” The defendants alleged by way of answer that the plaintiff guaranteed to furnish certain “steep tanks” of 800 bushels capacity, whereas the ones furnished had a capacity of only 750 bushels. It was further set forth in the answer that plaintiff agreed to furnish a complete new set of cold-air blinds for the kiln furnace, whereas the set furnished was of old material. The damages for these alleged breaches were placed at $2,000. The same facts were set up by way of counterclaim.

The jury found (1) that the steep tanks furnished had .a capacity for steeping 800 bushels; (2) that the cold-air blinds furnished were not such as the contract called for; and *228(3) that the reasonable cost of remedying the defects therein was $100. From a judgment entered in accordance with the verdict defendants appeal.

For the appellants the cause was submitted on the brief of *Naber & Wheeler*and *J. E. Malone.*

*Louis G. Bohmrich,*for the respondent.

Babees, J.

The errors assigned are (1) erroneous rulings on evidence; (2) failure to instruct the jury as requested; (3) giving erroneous instructions; (4) refusal to change the answer of the first question from “Yes” to “No;” (5) failure to grant a new trial; (6) compelling defendants to elect as to which of two measures of damages claimed on account of the steeping tanks they would rely on.

The evidence warranted the jury in finding that the steep tanks furnished had 800 bushels capacity. This conclusion eliminates most of the errors assigned, because they relate to rulings on evidence bearing on the amount of damages claimed to have been sustained by defendants because the tanks were not of the agreed capacity, and to instructions given and refused upon the same subject. Under the verdict the defendants were not entitled to any damages, and they could not have been harmed because of errors which might have tended to reduce their recovery had the jury answered the first question in the verdict differently.

Bearing on the capacity of the steep tanks, *Albert Sterr*was asked: “Looking at book Exhibit 6, can you look and refresh your memory how many bushels you malted a day?” Objection was sustained to this question, and properly so, because the book was not kept by the witness and there was nothing to show that he had any knowledge that it was correctly kept. The question did not ask for a computation. It was simply sought to get the witness to testify to a fact in reference to which he had only such knowledge as he might derive from the examination of a book which he did not keep. *229Certain evidence given by the witness Nagel was stricken ont, as we understand tbe record, because be also based bis evidence on tbe contents of an account book wbicb be did not keep. These rulings were correct. A witness should not be allowed to use a writing to refresh bis memory wbicb was made by another person unless be knows it to be correct. Jones, Ev. (2d ed.) § 877 (880) and cases cited in note 55.

It is argued that tbe contract was entire, and, tbe jury having found that tbe cold-air blinds furnished did not conform to tbe contract, no recovery could be bad. Tbe jury found that tbe reasonable cost of remedying tbe defect would be ■$100. Assuming tbe contract to be entire, tbe evidence would fully warrant a finding of substantial performance under tbe decisions of this court in *Foeller v. Heintz,*137 Wis. 169, 118 N. W. 543; *Manning v. School Dist.*124 Wis. 84, 102 N. W. 356; *Manthey v. Stock,*133 Wis. 107, 113 N. W. 443; and *Mueller v. Burton,*139 Wis. 384, 121 N. W. 152, 176. No question was submitted to tbe jury on tbe question of substantial performance and none was asked for; so we must presume a finding of tbe court that there was such performance, in support of tbe judgment, if such a finding is necessary or material. Sec. 2858m, Stats. 1913. Furthermore, tbe defendants counterclaimed for tbe damages wbicb they sustained by reason of plaintiff’s default and tbe case was tried on this issue. Tbe defendants made their election of remedies and should be held to their election.

*By the Gourt.*— Judgment affirmed.