Timberlake v. Thayer ( 1898 )

Terral, J.,

delivered the opinion of the court.

Thayer sued Timberlake on a promissory note for $150, indorsed by him waiving “ notice and protest,” and recovered the amount of said note and interest. The testimony being concluded, the defendant moved its exclusion, because no demand of payment was made at the maturity of the note, which motion was overruled.

The defendant excepted to oral testimony given by plaintiff as to an entire contract between him and Vandiver, one of the joint makers of the note indorsed by Timberlake, and which he testified was made on the 24th day of December, 1890, for services to be rendered by Vandiver during the entire year 1891, as inadmissible under the sta'tute of frauds.

On entering upon the trial of the case, the witnesses of both parties were called and put under a rule of the court. After the close of the testimony of the witnesses so put under the rule, J. T. Franklin was offered by the defendant to prove certain material matters in his behalf, and he was excluded from testifying, because he had not been under the rule of court, though it appeared to the court that Franklin had not heard the evidence given in the case.

1. We think the court erred in the exclusion of the evidence of Franklin. It was expressly held by this court in Ferguson v. Brown, 75 Miss., 214, that a party was not to be denied the testimony of his witness because the witness had disregarded the order of the court. In this case Franklin had not violated :any rule of court, he had not heard any of the evidence and he was not the subject of any legal exception. A witness wilfully disobeying the orders of the court may be punished for the contempt, and the party calling him must suffer loss by having his credit impaired by such misconduct, but he is entitled to place his testimony, such as it may be, before the jury.

2. The waiver of “protest and notice” was a waiver of a demand. Carpenter v. Reynolds, 42 Miss., 807.

3. The statute of frauds is no objection to the testimony of Thayer as offered before the jury.

For the error of the court in excluding the testimony of Franklin, the verdict and judgment are set aside and reversed, and the case is remanded.