JOHN HUNT, Respondent, v. J. S. ELLIOTT, Appellant, 77 Cal. 588

Belcher, C. C. This action was brought to recover the sum of four hundred dollars, the agreed price for erecting two wind-mills, pumps, tanks, etc. The defendant, by his answer, denied that plaintiff had performed the conditions of his contract, and by way of cross-complaint alleged that by reason of the plaintiff’s failure to construct the works as agreed, he had been damaged in the sum of four hundred dollars, for which he asked judgment. The defendant answered to the cross-complaint, denying all of its material allegations.

The case was tried by a jury, and a verdict returned for the plaintiff for the sum of $356. The defendant thereupon moved-for a new trial upomtlie following grounds: 1. Misconduct of the jury in this, that one or more of the jury were induced to assent to the verdict by a resort to the determination of chance; 2. Insufficiency of the evidence to justify the verdict, and that it is against law; 3. Errors in law occurring at the trial and excepted to by the defendant. The motion was denied, and the defendant appealed. 1.

The objection that the verdict should be set aside because there were no special findings on the issues raised by the cross-complaint and the answer thereto cannot be sustained. The code provides that “in an action for the recovery of money only, or specific real property, the jury, in their discretion, may render a general or special verdict.” (Code Civ. Proc., sec. 625.) This action was for the recovery of money only, and the verdict covered all the issues presented by the pleadings. There was no necessity, therefore, for special findings. 2.

The point that the verdict of the jury was reached “ by a resort to the determination of chance” is not well taken, for two reasons: 1. The affidavit of the juror Baer did'not state facts which made the verdict a chance verdict within the meaning of subdivision 2 of

section 657 of the Code of Civil Procedure, and it was therefore inadmissible to impeach the verdict; 2. Baer’s affidavit was met and overcome by counter-affidavits of two other jurors, one of them being the foreman. (Turner v. Tuol umne County Water Co., 25 Cal. 397; Hoare v. Hindley, 49 Cal. 274.) . In the case first cited, the court, by Sanderson, C. J., speaking of a similar alleged misconduct, and after reviewing the authorities, said: “But independent of authority, it is manifest that there is no element of chance in such a verdict.

Each juror marks a sum which, in his judgment, represents the true amount of damages. Neither of the sums is the result of chance; on the contrary, each is the result of the judgment or will of the juror by whom it was marked. Neither is the aggregate of these sums, nor the quotient, resulting from a division of the aggregate by twelve, the result of chance, but, on the contrary, the result of the most accurate of the sciences.

Thus, from the commencement to the end of the process, no quantity which enters into the final result is determined by a resort to chance.” And in another part of the opinion it is said: “To ascertain this average, the jury may properly adopt the method which was used in the present case, but they ought not to agree to be bound by the result, whatever it may be. If they do so agree, and such result is made the verdict without further consultation or assent, such verdict is vicious and irregular, and must be set aside whenever the fact is made to appear by proper and competent evidence.

If, on the contrary, they do not agree to be bound by the result, but reserve to themselves the right to dissent, such a proceeding is not irregular; and if afterward, upon consultation and discussion, they finally agree to adopt such result as their verdict, the verdict so found is good.” The counter-affidavits in this case show that all the jurors were in favor of returning a verdict for plaintiff, and that after considering the matter, each juror marked down the amount he was willing to allow; that no one of these amounts was less than $350; that they then-agreed to divide the aggregate of these amounts by twelve, it being understood, however, that they were not to be bound by the result; and that after the amount was so ascertained, the jurors unanimously agreed to adopt it as the sum to be returned. 3.

The evidence introduced for the plaintiff was sufficient to sustain the verdict, while that introduced for the defendant was sharply in conflict with it. In such a case the rule is well settled that the judgment will not be disturbed by the appellate court, on the ground of insufficiency of the evidence to justify the verdict or other decision. 4. The instructions given to the jury stated the law of the case correctly, and we see nothing in them to mislead or confuse the jurors. The alleged conflict is seeming rather than real. The court properly gave instructions to meet each party’s theory of the case.

We find no material error in the record, and therefore advise that the judgment and order be affirmed. Foote, C., and Hayne, C., concurred. The Court. For the reasons given in the foregoing opinion, the judgment and order are affirmed.