#### Bazelon, Respondent, vs. Lyon and others, Appellants.

*April 17*

May *8, 1906.*

*Evidence: Secondary evidence: Conclusions: Booh entries: Rebuttal: Instructions to jury: Appeal: Immaterial errors: Review of evidence to sustain verdict.*

1. Evidence that a letter could not tie produced but bad been burned or destroyed was sufficient to warrant tbe admission of second-' ary evidence of its contents.

2. Permitting plaintiff’s busband to testify tbat sbe did not owe defendants anything is *held,*in view of other testimony, not to have been prejudicial error, although tbe question called for a conclusion.

3. Permitting plaintiff’s busband to'testify tbat before paying for them be wished to examine goods shipped by defendants to plaintiff, because be “wouldn’t trust” defendants, is *held,*in view of other testimony, not to have been prejudicial error.

4. To render book entries admissible in evidence under sec. 4189, Stats. 1898, tbe preliminary proof required by tbat section must be made.

5. It was competent to permit a witness (plaintiff’s agent) to testify on rebuttal as to whether or not be wrote a letter at a certain time which a witness on tbe other side attempted to show be bad written at tbat time.

6. In an action to recover tbe amount paid for goods which bad been returned to tbe defendants, it being undisputed tbat tbe amount *338was flue to plaintiff unless she had received credit therefor, it was not error to refuse to instruct the jury that the burden was upon plaintiff to show by a preponderance of the testimony and with reasonable certainty that defendants were indebted to her.

7. A statement in the charge that “the goods did not correspond with the order and were returned” is *held*not a prejudicial error although the evidence on that point was conflicting, the only contested issues being whether plaintiff had received credit for the goods so returned and whether defendants were entitled to anything on their counterclaims.

8. Where there is any credible evidence to support the verdict, the ruling of the trial court sustaining it will not be disturbed on appeal.

Appeal from a judgment of the superior court of Douglas county: Chables Smith, Judge.

*Affirmed.*

This is an appeal from a judgment in favor of the plaintiff for the sum of $34.30. The claim set up in the complaint is for money had and received on account of money paid to the defendants for goods which were returned. The defendants answered denying generally the allegations of the complaint, and feet up three several counterclaims amounting in the aggregate to $139.64. The gist of the several counterclaims is that the defendants at different times, at the instance and request of the plaintiff, shipped to her several bills of goods, which she refused to receive and which were returned, in consequence of which breaches of contract on the part of the plaintiff the defendants sustained damages in the aggregate amount specified in the answer. The jury found in favor of the plaintiff for the amount claimed, $34.30, and disallowed the defendants’ counterclaims. Judgment was rendered in favor of the plaintiff, from which this appeal was taken. Numerous errors are assigned by the appellants which will be briefly considered.

Eor the appellants there was a brief by *Luse, Powell, deForesb & Luse,*and oral argument by *L. K. Luse.*

Eor the respondent the cause was submitted on the brief of *Henry G. Wilson.*

*339KeRwiw, J.

1. Error is assigned because tbe court permitted tbe witness Bazelon to testify to tbe contents of a letter wbicb be claims to bave received from tbe defendants, upon tbe grounds that tbe original should bave been produced or a proper foundation laid for secondary evidence of its contents, wbicb bad not been done! We tbink tbe testimony sufficient to warrant tbe introduction of secondary evidence. There was evidence to tbe effect that tbe letter could not be produced — -that it bad been burned or destroyed. Besides, it does not appear to be seriously disputed that a copy of tbe missing letter produced and appearing in tbe record is a true copy. We tbink there was no prejudicial error in tbe admission of tbe evidence under this assignment of error.

2. Error is assigned because tbe court permitted tbe witness Bazelon to testify that bis wife did not owe Lyon Bros, anything, on tbe ground that tbe question called for a conclusion. Conceding that tbe question was not strictly proper, in view of tbe testimony developed in tbe case upon this subject we tbink no prejudicial error was committed in overruling tbe objection to it.

3. Counsel also asked tbe witness Bazelon tbe following question: “Why did you make this request of looking tbe goods over before you paid?” An objection to this question was overruled, and tbe witness answered: “I wouldn’t trust them, Mr. Wilson, I wouldn’t trust them people.” This ruling is also assigned as error. In view of other testimony in tbe case respecting tbe dealings between tbe parties, it does not seem that this answer could bave prejudiced tbe defendants.

4. It is assigned that tbe court erred in excluding book entiles and certain exhibits presented. These entries were offered under sec. 4189, Stats. 1898, and in order to make them admissible it was necessary to comply with tbe provis-' ions of tbe statute. This statute makes it necessary to prove ■either by the testimony of tbe person who made tbe entries, *340or, if Re be beyond the reach of a subpoena, to make such proof by any person having custody of the entries and who testifies that the same were made by the person or persons authorized to make them, in whose handwriting they are, and that they are true and correct to the best of his knowledge and belief. A careful examination of the testimony convinces us that these provisions of the statute were not complied with. Hence the court was right in excluding the evidence. *Milwaukee T. Co. v.*Warren, 112 Wis. 505, 87 N. W. 80; *Kelley v.*Crawford, 112 Wis. 368, 88 N. W. 296.

5. It is also insisted that the court erred in its rulings respecting a letter and envelope offered containing written order, together with remarks made by the court in the presence of the jury regarding the same. The error assigned seems to be directed particularly to the remarks of the trial judge. These exhibits were first ruled out, and, after considerable discussion between the court and counsel and additional evidence offered, they were finally admitted. Without going into a discussion of the remarks made by the court, of which complaint is made, we are unable to see that they could have prejudiced the jury. *Owen v. Long,*97 Wis. 78, 72 N. W. 364.

6. Nor do we think any prejudicial error was committed on the cross-examination of the witness Eicklen, complained of. It was competent to permit the witness Bazelon on rebuttal to testify as to whether or not he wrote the letter during the year 1902 which FickLen attempted to show he had written at that time.

7. Error is assigned because the court refused to give the following instruction requested by defendants:

> “The burden of proof is upon the plaintiff to show that the defendant is indebted to her, and, unless this is shown by a preponderance of the testimony and with reasonable certainty, your verdict should be for the defendant.”

*341We think xlo error was committed in tbe refusal to give tbis instruction. Tbe action was brought to recover $34.30 paid for goods returned. It was undisputed that tbis bill of goods bad been returned.. Therefore tbis amount was due to tbe plaintiff, unless she bad received credit therefor.

8. It is also insisted that tbe court erred in its charge to tbe jury. We have carefully examined tbe charge and think all disputed matters were fairly submitted to tbe jury. It is claimed that tbe statement, “Tbe goods did not correspond to tbe order and were returned,” was error, on tbe ground that the evidence was conflicting upon tbis point. But tbe goods were in fact returned and accepted by tbe defendants, and tbe only contested issues were whether tbe plaintiff got credit for tbe goods so returned, and whether defendants were entitled to any amount on their counterclaims. These questions were fairly submitted to tbe jury. *Davis v.*C., *M. & St. P. R. Co.*93 Wis. 470, 67 N. W. 16, 1132.

9. It is also insisted that there was not sufficient evidence to support tbe verdict. Where there is any credible evidence to support tbe verdict tbis court w-ill hot disturb tbe ruling •of tbe trial court sustaining tbe verdict. *Bannon v. Ins. Co. of N. A.*115 Wis. 250, 91 N. W. 666; *Beyer v. St. Paul F. & M. Ins. Co.*112 Wis. 138, 88 N. W. 57. Tbe case seems to have been fairly tried upon tbe merits, and tbe judgment ■should not be reversed, unless we can see that error was committed which prejudiced tbe defendants. *Mauch v. Hartford,*112 Wis. 40, 87 N. W. 816.

We discover no reversible error in tbe record.

*By the Court.*— Tbe judgment of the court below is affirmed.