5 S.D. 197 | S.D. | 1894
This action was brought to recover on an agreement of which the following is a copy: ‘ ‘Chicago, October 1st, 1891. In consideration of the sum of one dollar and other valuable considerations received from John A. Tollman Company the receipt of which is hereby acknowledged, I hereby guaranty the payment to John A. Tollman Company of any and all moneys collected by Geo. A. Willard for the account of John A. Tollman Company, and for all moneys which they may from time to time advance to said George A. Willard, and any and all indebtedness now due or which may hereafter become due said John A. Tollman Company in excess of the amount due said George A. Willard, as per agreement between said John A. Tollman Company and said George A. Willard; and I hereby waive notice of acceptance of this guaranty by John A. Toll-man Company , and to accept a verified statement of the account as kept in the regular books of said John A. Tollman
The evidence on the part of the plaintiff consisted of two depositions — one of S. A. Tollman, vice-president of the plaintiff company; and the other of A. S. Delaware, the plaintiff’s secretary, having charge of plaintiff’s books of account. At the taking of the depositions, defendants did not appear. On the trial a number of the questions propounded to these witnesses were objected to as leading, and error is assigned upon the refusal of the court to exclude them. As to these assignments it is sufficient to say that generally the allowance or dis-allowance of leading questions is in the discretion of the court, and it is only when such questions go directly to the substance of the matter in controversy, and this ruling approaches at least an abuse of discretion on the part of the court, that their allowance will be held reversible error. Greenleaf lays dowm the rule, somewhat strongly, perhaps, in Volume 1, § 435, of his work on Evidence, thus: “Indeed, when and under what circumstances a leading question may be put is a matter resting in the sound discretion of the court, and is not a matter