Physicians are bound by what is universally settled in the profession, not by what some writers and practical surgeons recommend. Other writers and other surgeons may adopt other modes, and when there is room for doubt or choice, as surgeons or physicians, they must exercise their judgment, and are not responsible for mistakes honestly made. If this last instruction can be sustained, then the further progress in surgery is absolutely prohibited by judicial decision, and I venture to say that writers of the present day on surgery widely differ in the treatment and practice from writers of ten or fifteen years ago; at least, if this be not true, then the science of surgery has not progressed to such an extent as a non-professional man, reader and thinker is led to believe it has. And in the examination of this particular case I have taken upon myself the trouble to examine medical works with reference to the particular disease phimosis. In the International Encyclopedia of Surgery there are at least several modes of treating this particular disease laid down. Caution under some circumstances is advised. Circumcision under certain circumstances is recommended, and under others not. Volume 5 of the Reference Hand-Books of the Medical Science supports this assertion. "Great room for difference of opinion is left in the exercise of the art of surgery, as there are usually several ways of doing the same thing; different operations for the treatment of injuries, each operator having a partiality for a mode of dressing that has been successful in his own or his preceptor's practice." Such is the language used by the author in Elwell on Malpractice and Medical Evidence. Physicians are not responsible for the errors of an enlightened judgment, where good judgments may differ; and I can come to no other conclusion than that, when there are reasonable grounds for doubt and difference of opinion, the professional man, after the exercise of his best judgment, admitting that he possesses the necessary knowledge, is not responsible for errors of judgment or mistakes, and is only chargeable with error where such error could not have arisen except from want of or the exer cise of reasonable skill and diligence. We think, therefore, there was error in this instruction, and that it had a tendency to mislead the jury. Other errors are assigned upon the charge of the court as given to the jury, but we are inclined to think they are without foundation. For the errors pointed out the judgment must be reversed, and a new trial granted. Reversed. PAWNEE DITCH AND IMPROVEMENT CO., PLANTIFF IN ER- 1. VERDICT IMPROPERLY ARRIVED AT.-A verdict obtained by averaging the estimates of the individual jurors in pursuance of an agreement to be bound by the result, and returned into court without further consideration of the issues, should be set aside on motion, supported by satisfactory proof. 2. AFFIDAVITS OF JURORS Competent to PROVE MISCONDUCT.-Under the express provisions of the civil code the affidavits of jurors are competent to prove that a verdict was reached by the determination of chance. Error to County Court of Logan County. Messrs. J. P. BROCKWAY and E. M. SHERIDEN, for plaintiff in error. Mr. CHARLES L. ALLEN, for defendant in error. BISSELL, J. In November, 1889, after a trial by jury, Adams recovered a judgment against the Ditch Company for one hundred and sixty-two dollars and fifty cents. The action wherein the judgment was entered was brought to recover damages for the failure of the company to deliver water under a contract which they had made with him. The lack of water, according to the plaintiff's contention, caused the destruction of his crops and the damages for which he sued. After the verdict, a motion for a new trial was made, based on the misconduct of the jury. The refusal of the court to set aside the verdict for the alleged misconduct is the only error relied on or discussed. The misconduct was proven by the affidavits of two of the jurors. During their deliberations the jury entered into an agreement to severally put down an estimate of the damages, add these sums together, divide by twelve and take the quotient as their verdict. The proof was not disputed, and it clearly establishes an agreement to be bound by the result to be thus obtained, which should remain the verdict without further consideration of the issues which had been submitted. Verdicts obtained in this manner have always been condemned by the courts, and almost universally set aside where the fact has been satisfactorily established. Such verdicts are condemned because they are the results, as the authorities put it, of chance and of lottery, rather than of the deliberation of the jurors. As well put in one case, "it substitutes the fluctuating and uncertain hazards of the lottery for the deliberate conclusions of their reflections and interchange of views." Parham v. Harney, 6 S. & M. 55; Lee v. Clute, 10 Nev. 149; Kennedy v. Kennedy, 18 N. J. Law 450; City of Pekin v. Winkel, 77 Ill. 56; Dorr v. Fenno, 12 Pick. 520. The principal difficulty has been to decide what sort of testimony should be received to establish this particular kind of misconduct. The earlier rule at the common law, doubtless, was that affidavits of the jurors might be received for the purposes of impeaching their verdict. In those adjudications little consideration seems to have been given to the determination of what matters were susceptible of that kind of proof. The later decisions, which permit the affidavits of jurors to be used in impeaching their verdict, restrict this right to proof of what may be said not to inhere in the verdict, and to be evidence of something which does not pertain to the substance of their deliberations. The objection to the nature and character of the proof begot much difficulty, and " sometimes, as in the case of Hoare v. Hindley, 49 Cal. 274., the court declined to consider an absolute affidavit showing the rendition of such a verdict, because it would not assume that the affiant had or could rightfully have any knowledge upon the subject. We are relieved, however, of this difficulty, and are not compelled to determine whether according to the weight of authority affidavits of jurors may be received for this purpose, because the code in section 193 has distinctly provided that such misconduct may be proven by the affidavits of the jurors. When it is conceded that a verdict thus arrived at is obtained by chance, within the legal definition of that word as applied to matters of this description, the statute, by its express terms, renders such proof entirely competent. The verdict in this case was obtained by chance, and this fact was sustained by competent testimony. The authorities very generally agree, that when a verdict is obtained in this manner it cannot be permitted to stand. The objection is not so much to the result as to the vicious agreement which preceded it. The difficulties which juries. experience in arriving at a conclusion in cases where the damages to be assessed are unliquidated, and to be measured by what may be gathered from the varying opinion of witnesses, have led the courts to permit these verdicts to stand whenever the proof has satisfied them that the finding has subsequently been voted on and accepted by the jury as the legitimate expression of their deliberations. In most cases very little proof in this direction has been required, but when, as in this case, there was clear proof that the jury agreed before the result was ascertained to be bound by the quotient, whatever it might be, and the agreement was afterwards carried out, and there was no subsequent consideration of the amount or of the conclusion, the courts have always set the verdict aside. Boynton v. Trumbull, 45 N. H. 408; Johnson et al. v. Perry, 2 Humph. 569; Hamilton v. Des Moines Valley R. R. Co., 36 Iowa 31; Wright v. Ill. & Miss. Telegraph Co., 20 Iowa 195; Illinois Central R. R. Co. v. Able, 59 Ill. 131; Heath v. Conway, 1 Bibb 398; Dana v. Tucker, 4 Johnson 487. For the error committed by the court in its refusal to set aside the verdict this case must be reversed and remanded. Reversed. ARMOUR C. ANDERSON, PLAINTIFF IN ERROR, V. SAMUEL 1. WHEN REAL ESTATE BROKERS ENTITLED TO COMMISSIONS.-To render the owner of real property liable for commissions to a broker who has been authorized to sell it, where the sale has been effected by the owner himself, the principal fact recognized as the controlling fact in such cases must be found, that the parties were brought together and the transaction made possible by the instrumentality of the broker. 2. SALE BY OWNER WITHOUT KNOWLEDGE OF PREVIOUS NEGOTIATIONS.-Although a broker may call the attention of a purchaser in the first instance to property in his hands for sale, where he neither informs him of the owner's name, nor introduces him to the owner, nor even mentions the fact to the owner, and the latter, without knowledge of the previous negotiations, sells the property to such purchaser, he is not liable for commissions. Error to Superior Court of the City of Denver. Mr. F. A. WILLIAMS, for plaintiff in error. Mr. I. N. STEVENS, for defendant in error. REED, J. Plaintiff in error was plaintiff below, and brought suit against the defendant to recover the sum of $137.50 alleged to be due as commission upon the sale of two building lots in the city of Denver. The property was sold by the owner, the defendant. It is conceded that prior to the sale plaintiff and defendant had a conversation in which defendant agreed to pay the regular commissions, if |