delivered the opinion of the court:
The briefs of the parties in this case are devoted principally to a discussion of the facts, which the law does not permit us to consider. The only question presented which is open for determination in this court arises upon the action of the court in sustaining an objection made during the cross-examination of the witness Conlcel, who testified on the part of Harman. The proof showed, and it was not denied, that the coal company wás unable to obtain from Harman the full amount of coal specified in the paragraph beginning with the word “quantity,” which is a part of the contract set out in the foregoing statement of facts, and it offered testimony tending to show that in lieu of coal so specified which was not delivered it had been obliged to purchase other coal at a price higher than that fixed by the contract with Harman, and it was this difference in price that it sought to recover from Harman. For the purpose of meeting this alleged state of facts Harman offered evidence tending to show that during a certain part of the time covered by the contract the output of the mine was reduced by causes mentioned in the last paragraph of the contract, and that the coal company received its full proportion of the coal actually produced during that time, as that proportion was fixed by that paragraph. In order to prove what the output of the mine was during the time in question, and to show on what days the mine was idle on account of causes specified in the last paragraph of the contract, Harman took the testimony of Conkel, who was assistant mine superintendent of the Indiana Hocking mine and who superintended the operation of the mine during the time in question. The mine, when in active operation, produced from 800 to 1000 tons of coal per day. The witness testified as to the number of tons of various kinds of coal produced by the mine during the months of October, November and December, 1905, and January, February and March, 1906, and as to the days the mine was idle during *39that time for causes specified in the contract. Practically the whole of the alleged shortage occurred during these months. The witness was unable to so testify from his unaided memory, but testified by constantly refreshing his memory as he proceeded, by referring to sheets of paper which he had in his possession while on the witness stand. The information on those sheets he had assisted in copy-from the coal reports which were kept at the mine and which were at the mine during the time of the trial. These reports so kept at the mine, according to the testimony of this witness, showed the amount of coal mined each day, and were in that respect made up from weights taken by this witness as the cars loaded with freshly mined coal from time to time passed over the scales at the mine, and such reports showed also the dates upon which the mine was idle. Upon cross-examination of this witness the fact was developed that he could not testify in regard to the amount of the output and as to the dates on which the mine was idle except by reference to these sheets, which at that moment were in the court room and in the possession of counsel for Harman. Counsel for the company asked that he (counsel) be permitted to take them. Harman’s attorney objected, because, as he stated, the witness “used the sheets to refresh his memory, and for no other reason than that, under the decisions witness can use a memorandum and testify to it, and it is not necessary for counsel to introduce it in evidence.” The court sustained this objection and counsel for the company was not permitted to examine the papers. The purpose for which the sheets were desired by the cross-examiner, as stated by him at the time the objection was made and before it was passed upon, was for use in cross-examination. For that purpose he was entitled to have possession of these sheets and to examine them, in order that he might conduct the cross-examination of the witness with intelligence. (I Taylor on Evidence, secs. 749-753; 1 Wharton on Evidence, sec. 525; 8 Ency. of PI. & *40Pr. 142, 143; 1 Greenleaf on Evidence, sec. 437; Watson v. Miller, 82 Tex. 205.) No other witness testified who pretended to have personal knowledge of the amount of the output of the mine or of the number of days during which the mine was closed for any of the causes mentioned in the last paragraph of the contract.
For the error in sustaining the objection above discussed the judgment of the Appellate Court and the judgment of the municipal court will be reversed and the cause will be remanded to the municipal court for further proceedings consistent with the views herein expressed.
Reversed and remanded.