Gordon

This is an appeal from a judgment against defendants in an action wherein plaintiff sought to recover damages for injuries to certain real property committed by the defendants.

Such of the facts as are necessary to an understanding of the points herein discussed will be stated in the course of the opinion.

In his brief the plaintiff makes a preliminary motion to dismiss the appeal upon the ground that the notice to the clerk to prepare the transcript on appeal was not given within the time specified in section 953a of the Code of Civil Procedure after notice of the entry of -judgment. As to that motion the conclusion we have reached on the merits of the appeal renders unnecessary a consideration of that question.

The first point presented for a reversal of the judgment is that the trial court erred in denying the motion for a new trial made on the ground of the misconduct of the jury, the defendants claiming that the jury determined the amount of its verdict by a resort to chance.

According to the affidavits filed by the defendants on said motion, the verdict of the jury was reached by each juror specifying a sum to which he believed the plaintiff entitled (a maximum of one…