Nabers v. Goldforb

77 Miss. 661

Opinion

OalhooN, J.,

delivered the opinion of the court.

Nabers sued Goldforb for fifty-six days work as a mechanic. He himself was his own, and the sole, witness in the case, and he testified to the work as charged, and to the contract prico per diem for compensation. He testified from his independent recollection, but could not fix the exact date when he commenced the work. lie said he began on the 18th or 20th of January, he could not say which, but knew he left off on April 12.

On cross-examination the fact was developed that he had set down the dates of commencing and ending work in a memorandum book which he had not brought with him to court. At the conclusion of his examination, on Goldforb’s motion, the court excluded all the testimony and instructed the jury peremptorily to find for the defendant.

This was error. Because the plaintiff did not have with him his contemporaneous memoranda is no reason he should not be permitted to testify from his recollection independently of the memoranda. 1 Gree^ileaf Ev., sec. 436.

Reversed and remanded.