
    No. 8978.
    Engelbach v. Kellogg.
    1. Appeal and Error — Verdict, upon conflicting evidence must be
    accepted.
    2. -Evidence. The admission in evidence of a self-serving memo-
    randum, made by the party succeeding below, and probably decisive of the issue, held error.
    
      Error to Denver District Court, Hon. John H. Denison, Judge.
    
    
      Department.
    
    Mr. O. N. Hilton, Mr. Caesar A. Roberts, Mr. Leslie M. Roberts, for plaintiff in error.
    
      Decided March 4, A. D., 1918.
    Judgment reversed on rehearing December 2, A. D., 1918.
    No appearance for defendant in error.
   Opinion by

Mr. Justice Teller.

The defendant in error recovered a judgment against the plaintiff in error in an action for a commission for procuring a loan.

The plaintiff claimed that he had been employed by the defendant to procure a loan at five and one-half per cent interest, and had secured said loan, while the defendant claimed the loan was to be at five per cent interest, and hence he had declined to accept it.

It is urged that the judgment is not supported by the evidence, but as there was a conflict of evidence upon the main ground of controversy, the verdict of the jury must be accepted by this court.

It is further contended that the court erred in admitting in evidence a memorandum, made by the plaintiff, and a letter written by him to the defendant.

The memorandum does not appear to be admissible under any of the exceptions to the general rule that memoranda are not admissible in evidence. The original is preserved in the record, and is a mere scrawl, in lead pencil.

It bore upon the vital question in the case, i. e., the rate of interest which the loan was to draw, and, there being a direct conflict in the testimony of the parties, the only witnesses on that point, it is highly probable that it may have been decisive of the issue.

Its admission was error, for which reason the judgment is reversed. The former opinion is withdrawn.

Chief Justice Hill and Mr. Justice White concur.  