Hunt v. Elliott
Before: Belcher
Synopsis
Appeal from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial.
The affidavit of H. S. Baer was offered in support of plaintiff’s motion for a new trial, and stated “that he was one of the jurymen impaneled upon the trial of the above-entitled cause; that after the jury retired for the purpose of considering their verdict, they found they could not agree thereon, and that the jurors all agreed that each one should mark down the sum he thought proper to find in favor of the plaintiff, and against the defendant, and then to divide the total amount of those sums by twelve, the number of persons composing the jury, and that the result should be their verdict; and thereupon each one of the jurors did mark down the sum he thought proper to find in favor of the plaintiff, and against the defendant; and they did then and there divide the total amount of the sums so marked down by each one of the jurymen by twelve; that the result thus obtained was returned into court as the verdict of the jury, and was found in the manner above stated.” Further facts are stated in the opinion.
Belcher, C. C. This action was brought to recover the sum of four hundred dollars, the agreed price for [590]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[591]umne County Water Co., 25 Cal. 397; Hoare v. Hindley, 49 Cal. 274.) .
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