
    Albert Perry v. William Bailey.
    January Term, 1874.
    1. Contract: Services: Implied Promise. While the law will sometimes imply a promise to pay for services performed when there has been no express employment, yet it will not imply a promise on the part of one party to pay for services rendered under a direct and express employment by another. [Frye v. Sanders, 21 Kan. 30; Kay v. Mograin, 24 Kan. 79.]
    2. -: Instructions. In an action to recover for services, in which there was some, though circumstantial, testimony tending to show an employment by a party other than the defendant, it is not error for the court to modify an instruction as to the circumstances which will imply a promise to pay by adding the qualification above stated.
    3. Verdicts: Affidavits of Jurors: Impeaching: Rule: Qualification. The general rule is that affidavits of jurors are admissible to explain and uphold their verdict, but not to impeach and overthrow it. But this general rule is subject to this qualification: that affidavits of jurors may be received, for the purpose of avoiding a verdict, to show any matter occurring during the trial, or in the jury-room, which does not essentially inhere in the verdict itself, as that a juror was improperly approached by a party, his agent or attorney, or that the verdict was determined by lot; but not to show any matte-r which does essentially inhere in the verdict, as that the juror did not assent to the verdict, jfiiat he misunderstood the instructions or the testimony, or any other matter resting alone in the juror’s breast.
    
    *4.--: Intoxication of Juror. If a juror, during the progress of a trial, drinks intoxicating liquor on the invitation and at the expense of the party who afterwards has the verdict, or if at his own expense he drinks so much as to be under the influence of the liquor while sitting in the case, the verdict ought not to stand. On the other hand, the mere drinking of intoxicating liquor by a juror during the progress of a trial is not, in and of itself, sufficient to set aside the verdict.
    Error from Doniphan district court.
    Perry sued Bailey for services rendered as an attorney at law. Trial at the September term, 1873, of the district court. Perry asked certain instructions. The third instruction asked was modified by the court. Said instruction, as modified, is as follows, the modification being the adding of the clause at the end printed in italics, and inclosed in brackets, to-wit:
    “(3) If the jury find from the evidence that the plaintiff in this suit acted as attorney for William Bailey, the defendant in the suit of Bixby v. Bailey, and that said Bailey knew that said Perry was so acting as his attorney, and made no objections to tbe said Perry rendering services in said action, and received the benefits of the services of said attorney, then the law raises, a, promise that the said Bailey should pay the said Perry what his services were reasonably worth, [^unless the jury further find there was an express employment of Perry as said attorney by Dana,Fox.~\”
    
    Verdict for defendant. Other facts appear in the opinion.
    
      Nathan Price, for plaintiff in error.
    There was no evidence of any direct employment of the plaintiff by another party to defend the action, and the modification of said third instruction was erroneous. There was no testimony that made the modification applicable, and the modification tended to mislead the jury.
    *The court ought to have granted a new trial. The testimony showed an undoubted right to recover, and upon this point there was no conflicting testimony. Code, § 306, cl. 6; Backus v. Clark, 1 Kan. *309. If there was no direct employment proven, yet the defendant knowingly received the benefit of plaintiff’s services. If one knowingly receives the benefit of services done him by another, without his authority, the law implies a promise to pay what such services are reasonably worth; Chit. Cont. 19; Abbot v. Inhabitants of Hermon, 7 Greenl. 118; Richards v. Protection Ins. Co., 30 Me. 275; Hubbard v. Coolidge, 1 Mete. 84; Moore v. Pox, id Johns. 244; Barrett v. Alexander, 52 111. 118.
    A new trial should have been granted on account of the intoxication of the juror Dixon. Drinking intoxicating liquors by a juror is a ground of new trial. 1 Grab. & W. New Tr. 101; People v. Douglass, 4 Cow. 36.
    
      C. IV. Johnson, for defendant in error.
    There is a conflict in the testimony in regard to the employment of plaintiff, and the court will not disturb the verdict of a jury where-there -was evidence to sustain the verdict.
    The modification of the third instruction was correct. It was only stating, in effect, the well-settled rule of law that there is no implied promise where an express contract or liability is proven. 1 Chit. PI. 340; Chit. Cont. 23. An attorney cannot recover by mere proof' he performed services, without proof of retainer. Burkhart v. Gardner, 3 Barb. 64. Without retainer, his services would be barratry, and, if repeated frequently, would be indictable. 4 Bl. Comm. 134.
    
      
       Verdict obtained by aggregation and division. See Bailey v. Beck, 21 Kan. 462. Affidavits of jurors, stating facts which do not essentially inhere in the verdict itself, may he received. Johnson v. Husband, 22 Kan. 285; State v. Rhea, 25 Kan. 581. Facts to which juror may testify. See Gottlieb v. Jasper, 27 Kan. 776; Ortman v. Union Pac. Ry. Co. 32 Kan. 421; S. C. 4 Pac. Rep. 858. Affidavits not receivable to impeach verdict. State v. Furbeck, 29 Kan. 536.
    
   Brewer, J.

This was an action to recover for professional services, as an attorney. Bailey was a defendant in an action of ejectment, brought by one Bixby. In that action Perry, the plaintiff in error, appeared as attorney for Bailey; tried and won the case. He then. brought this action to recover for his services. On the trial it appeared that Bailey had *purchasedthe land in controversy in the ejectment case from Simeon Fox, w'ho had obtained it by deed from Dana Fox, his father. The defense in this suit was. that Bailey, after having been served with summons in the ejectment case, notified his grantors, and called upon them to conduct the defense, and make good their warranty, and that thereupon Dana Fox employed the plaintiff, and under that employment the plaintiff acted. The testimony was somewhat conflicting, but it seems to us there was ample to have warranted the jury in finding for the plaintiff. But there was also positive testimony on the part of the defendant that he had not employed plaintiff, and circumstantial testimony tending to show an employment by Fox. Under these circumstances, the questions of fact having been submitted to and decided by a jury, it is, under well-settled principles, beyond the province of this court to disturb the decision on the ground that it was not sustained by the evidence.

Nor do we see any error in the modification of the third instruction asked by plaintiff. The law will, it is true, sometimes imply a promise to pay for services when there has been no express employment; but it will not imply a promise on the part of one party to pay for services rendered under a direct and express employment by another. Indeed, we do not understand counsel as criticising the correctness of the law enunciated, considered as an abstract statement, but as denying its application to this case, and insisting that, being inapplicable, it tended to mislead. There was, it was true, no direct evidence of plaintiff’s employment by Dana Fox, but there was circumstantial testimonyTending to establish such employment, strong enough, as it would seem, to have convinced the jury; for, under the instructions of the court, only upon the theory of an express employment by Dana Fox could the jury have found against the plaintiff.

The only remaining ground of reversal presented is misconduct of the jury. On the motion for a new trial two affidavits were read. without objection: One, the affidavit of S. B. Cutler, one of the jurors who tried the case, who ‘^testified that E. F. Dixon,. another of the jury, “was intoxicated while acting as a juror at said term; that while the said case was being tried, and during the recess of said court, he saw said Dixon in a saloon drinking, and: while the said jurors were in their jury-room deliberating upon their verdict the conduct of said Dixon was abusive, and like that of a drunken man; and witness believes that the said Dixon, in said jury-room, was in a state of intoxication.” And the other, the affidavit of J. B. Brooks, who testifies that during that term he frequently saw said E. F. Dixon in a state of intoxication. No counter-testimony was offered, and the question is whether, upon this showing, the verdict ought to have been set aside. A preliminary inquiry is whether the testimony offered was competent. The misconduct of one juror is attempted to be shown by the affidavit of another. It may perhaps be said that no objection was urged to this testimony, and that, if the parties were Satisfied to admit it, this court might properly treat it as competent. As the question is, however, of some importance in the practice, it seems to us better to dispose of it upon \its merits It cannot be disputed that the general rule is that affidavits'of jurors, while received to sustain or explain their verdict, are inadmissible to impeach or overthrow it. Allison v. People, 45 Ill.37; Knowlton v. McMahon, 13 Minn. 386, (Gil. 358;) Shaw v. Fisk, 21 Wis. 368; Sawyer v. Hannibal & St. J. R. Co., 37 Mo. 240; State v. Millican, 15 La. Ann. 557. In Tennessee, however, this is not regarded as correct, and affidavits of jurors, even of their own misconduct, are received for the purpose of impeaching and setting aside their verdict. Crawford v. State, 2 Yerg. 60; Elledge v. Todd, 1 Humph. 43; Norris v. State, 3 Humph. 333.

The supreme court of the United States, while recognizing the rule, intimated that it might not be of universal application, and that cases might arise in which public policy, upon which the rule rests for support, might require, in the interests of justice, that such testimony be received to overthrow a verdict. U. S. v. Reid, 12 How. 361. *In California, by statute, affidavits of jurors are admissible to show that the verdict was obtained by lot or chance. Turner v. Tuolumne W. Co., 25 Cal. 398. In Massachusetts overt acts may be proved by the testimony of jurors to impeach their verdict. Grinnell v. Phillips, 1 Mass. 530; 3 Grah. & W. New Tr. 1434. In Ohio it has been held that where there is evidence aliunde of misconduct of the jury, their own testimony may be received, not only to limit and explain, but also to enlarge and aggravate, such misconduct. Farrer v. State, 2 Ohio St. 54. In the supreme court of Iowa the matter has received the most thorough examination. In Wright v. Illinois & M. Tel. Co., 20 Iowa, 195, Cole, J., after a full consideration of the authorities, thus states the conclusion to which the court arrives: “That affidavits of jurors may be received, for the purpose of avoiding a verdict, to show any matter occurring during the trial, .or in the jury-room, which does not essentially inhere in the verdict itself, as that a juror was improperly approached by a party, his agent or attorney; that witnesses or others conversed as to the facts or merits of the cause, out of court, and in the presence of jurors; that the verdict was determined by aggregation and average, or by lot, or game .of chance, or other artifice or improper manner; •but that such affidavit to avoid the verdict may not be received to ■show any matter, which does essentially inhere in the verdict itself, ■ as that the juror did not assent to the verdict; that he misunderstood ■ the instructions of the court, the statements of the witnesses, or the •pleadings in the case; that he was unduly influenced by the state.ments (or otherwise) of his fellow-jurors, or mistaken in his calculations or judgment, or other matter resting alone in the juror’s breast.” '.The rule here stated was reaffirmed in Cowles v. Chicago, R. I. & P. R. Co., 32 Iowa, 515.

This quotation from the opinion of Mr. Justice Cole seems to us to state very clearly and correctly the law applicable to questions of this kind. As to all those matters lying outside the personal consciousness of the individual juror, those things which are matters of sight and ^hearing, and therefore accessible to the testimony of othei’S, and subject to contradiction, — “overt acts,” as the Massachusetts court expresses it, — it seems to us that the interests of justice will be promoted, and no sound public policy disturbed, if the secrecy of the jury-box is not permitted to be the safe cover for the perpetration of wrongs upon parties litigant. If the jury has been guilty of no misconduct, no harm has been done by permitting their testimony to be received. If the jury has been guilty of xnisconduet, but such misconduct was not of such a nature as to prejudice the rights of the parties, the modern rule is to let the verdict stand, and simply punish the offending juror. But if such misconduct has wrought prejudice, not only should the juror be punished, but the verdict also should be set aside. ** Public policy forbids that a matter resting in the personal consciousness of one juror should be received to overthrow the verdict, because, being personal, it is not accessible to other testimony. It gives to the secret thought of one the power to disturb the expressed conclusions of twelve. Its tendency is to induce bad faith on the part of a minority; to induce an apparent acquiescence with the pxirpose of subsequent dissent; to induce tampering with individual jurors subsequent to the verdict. But as to overt acts, they are accessible to the knowledge of all the jurors. If one affirms misconduct, the remaining eleven can deny. One cannot disturb the action of the twelve. It is useless to tamper with one, for the eleven may be heard. Under this view of the law, the affidavits were properly received." They tended to prove something which did not essentially inhere in the verdict, — an overt act, open to the knowledge of all the jury, and not alone within the personal consciousness of one. If one juror was drunk while the jury were in their room deliberating, it was a fact he could hardly keep to himself; it was not a matter resting wholly in his own consciousness.

The testimony being competent, on the facts proved, should the verdict have been set aside? As to how far, and under what circumstances, the drinking of intoxicating liquors, and drunkenness, affect a verdict, the authorities are not uniform. *In some cases it has been held that the mere drinking of intoxicating liquors, without regard to the quantity or the effect, is good ground for setting aside a verdict', (People v. Douglass, 4 Cow. 26; Brant v. Fowler, 7 Cow. 562; State v. Baldy, 17 Iowa, 39; Ryan v. Harrow, 27 Iowa, 494;) while, on the other hand, in Pelham v. Page, 1 Eng. 535, the verdict was sustained, although it appeared that two or three of the jury were intoxicated during the trial, on the ground that, the testimony not being preserved in the record, there was nothing to show that the verdict was not exactly what it ought to have been. We think, however, the great weight of authority establishes these propositions: That if a juror, during the progress of the trial, drinks intoxicating liquor on the invitation and at the expense of the party who afterwards has the verdict, or if, at his own expense, he drinks so much as to be under the influence of the liquor while sitting in the case, the verdict ought not to stand; and, on the other hand, the mere drinking of spirituous and intoxicating liquors by a juror during the progress of a trial is not, in and of itself, sufficient to set aside a verdict. See, as- authorities on these propositions, 2 Grah. & W. New Tr. 564; Wilson v. Abrahams, 1 Hill, 207; Purinton v. Humphreys, 6 Greenl. 379; U. S. v. Gibert, 2 Sum. 21; Rowe v. State, 11 Humph. 491; Richardson v. Jones, 1 Nev. 405; State v. Jones, 7 Nev. 408; Gilmanton v. Ham, 38 N. H. 108; Pope v. State, 36 Miss. 121; State v. Cucuel, 31 N. J. 249; Creek v. State, 24 Ind. 151.

Aware, as all are, of the subtle and potent influence of liquor on the brain, no judge should for a moment permit a trial to proceed where it appeared that any juror was under the influence of intoxicating drink, or permit a verdict to standswhich was not the cool, deliberate judgment of sober men. But, with the habit of drinking so common as it unfortunately is, to hold that if a juror should, during a protracted trial, take a single drink of liquor, the verdict thereafter rendered must be set aside therefor, would be giving to verdicts of j uries a dangerous and unnecessary instability. It appears *from the affidavits in this case that the juror was frequently intoxicated during that term of court. So far as this testimony refers to the time outside of that in which he was engaged as a juror in this case it is insufficient. That a man has at some time in his life been drunk is not a statutory or common-law' disqualification of a juror. That he was in a saloon, during the progress of the trial, drinking, is not, under the rule as stated, sufficient to set aside the verdict. But it also appears that, while the jury were in their room, this juror’s conduct was abusive, and like that of a drunken man; and that, in the judgment of the witness, he was intoxicated. The testimony on this point is not very full, nor very positive. Yet there is no conflict. It is left, without denial, to rest upon this one affidavit. It seems to us a just and fair conclusion, from these two affidavits, that the juror had, to use the language of Mr. Justice Bronson in Wilson v. Abrahams, supra, “drank so much as to unfit him for the proper discharge of his duty.”

For this reason the judgment of the district court will be reversed, and the case remanded for a new trial.

(All the justices concurring.)  