Respondent requests a rehearing on the ground that certain statements in the decision of this court might be regarded as conclusive upon the subject in a retrial of the case. The decision states:
"But there was no purpose in receiving in evidence some diaries kept by the deceased, and the fact that certain others were destroyed by the husband of the claimant. No entry in those received purports to bear on any issue litigated."
The only complete diary for a year was the one for 1907, the year the alleged contract was made. A careful examination shows no entry as to a contract nor any entry from which either the existence or nonexistence of such contract could be inferred. As to the other four, the entries are only fragmentary and of a kind which do not permit inferences either in favor of or against a contract to pay plaintiff for services. But if at a future trial it is made to appear that any entry controverts testimony as to the whereabouts of the deceased at a particular time or his physical condition, it would then be for the trial court to determine its admissibility. At the trial had no effort was made either on cross-examination of defendant's witnesses or at the time the objection was made to the reception of the diaries to point to any entry therein relevant or material upon the issue litigated.
The matter covered by the second paragraph of the syllabus we deem adequately and correctly treated in the opinion so as to present no difficulty in a retrial of the case. Where the so-called admission against interest of a deceased person is not in respect to *Page 227 the specific issue litigated, but rather indirectly or upon a collateral matter, evidence going to contradict or explain the same should not be excluded.
A rehearing is denied.