John A. Tollman Co. v. Bowerman

• Decision Date: 03 April 1894
• Citation: 5 S.D. 197,58 N.W. 568
• Parties: JOHN A. TOLLMAN CO. v. BOWERMAN et al.
• Court: South Dakota Supreme Court

5 S.D. 197

58 N.W. 568

JOHN A. TOLLMAN CO.

v.BOWERMAN et al.

Supreme Court of South Dakota.

April 3, 1894.

Syllabus by the Court.

1. Generally, the allowance or disallowance of leading questions is in the discretion of the court, and it is only when such questions go very directly to the substance of the matter in controversy, and give the examining party an improper advantage, that their allowance will be held reversible error.

2. When parties agree in advance as to what shall constitute satisfactory and final proof of a fact, they take such question out from under the ordinary rules of evidence, and the fact may be established in the manner provided for in the agreement.

3. A judgment will not be reversed in this court on account of the admission of improper evidence, when it fully appears that without such evidence the verdict of the jury or the findings of the court must have been the same.

4. A definite and unambiguous promise contained in a written obligation, that the makers shall do a specified thing, will not be ignored because such promise is outside of, or apparently inconsistent with, the provisions of a prior agreement made by another party, which such first-mentioned obligation was based upon and generally made to secure. Therefore, where respondent, the T. Co., employed W. to sell goods as a traveling salesman, making with him, “in the latter part of October, 1891,” a written contract, which provided that he should pay his own expenses, and subsequently, on the 2d day of November, defendants gave the T. Co. a written obligation guarantying the payment to the T. Co. of “all moneys which they may from time to time advance to said” W., held, that the moneys so advanced were secured by said obligation, although the prior agreement with W. did not apparently contemplate the advancement to him of any moneys by the T. Co.

Appeal from circuit court, Minnehaha county; Frank R. Aikens, Judge.

Action on a contract by the John A. Tollman Company against Guy E. Bowerman and others. There was judgment for plaintiff, and defendants appeal. Affirmed.

Henry Robertson and Joe Kirby, for appellants. Boyce & Boyce, for respondent.

KELLAM, J.

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. Tollman Company, and to accept a verified statement of the account as kept in the regular books of said John A. Tollman Company as correct and final between the said company and the said George A. Willard, and without requiring any demand or notice of default; and I agree that any extension may be granted him, or other security taken or released, at any time, without notice or affecting my liability. My liability, however, is limited hereby to two thousand ($2,000) dollars, together with interest at 8 per cent. per annum until paid, and all costs, attorney's fees, and expenses that shall arise from enforcing collection; and for such amounts this is intended as a continuing guaranty. Any amount which shall become due from me upon this contract of guaranty I agree to pay at the office of John A. Tollman Company, in Chicago, Ills. Witness my hand and seal this 2nd day of November, 1891, in the county of Minnehaha, and state of South Dakota. [Signed] Guy E. Bowerman. M. R. Kenefick. D. Barr.” The answer admitted the making of the agreement, but denied the breach. Plaintiff had judgment, and defendants appeal.

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...