
    Ichabod B. Nabers v. Elihu J. Goldforb.
    Evidence. Witness. Memoranda.
    
    The testimony of a witness who states facts as of his knowledge, although he be the plaintiff himself, should not be excluded because he kept memoranda of the transactions about which he testifies and failed to produce the same on the trial.
    From tbe circuit court of Washington county.
    JION. F. A. MONTGOMERY, J.
    Nabers, the appellant, was the plaintiff m the court below; Goldforb, the appellee, was defendant there. The facts are stated in the opinion of the court.
    
      Thomas & Boddie, for appellant.
    The rulings of the court below, in excluding plaintiff’s evidence and instructing the jury peremptorily for defendant, were so manifestly erroneous that we deem it necessary only to most formally present them. -The plaintiff testified as of his own knowledge and within his own memory that he labored fifty-six days for defendant, was to be paid two dollars and fifty cents per day therefor, and had not been paid anything. This evidence was not rendered incompetent by the subsequent statement that the witness could not fix the exact date upon which he began the labor, that he had left his memorandum book, in which he noted the dates upon which he had worked, at home. 1 Greenleaf’s Ev., sec. 436.
    No counsel appeared in.supreme court for the appellee.
   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.  