This action'was brought to'recover upon one of a series of notes given in payment for a grading machine. Defendant pleaded a counterclaim based upon an alleged breach of warranty relating to such machine. Upon the trial the jury returned a verdict in favor of defendant upon all the issues, and allowed him a considerable sum as damages.’ It appears from the record that the verdict was returned on December 16, '1909, and judgment entered thereon January 6, 1910. It further appears that on December 17, 1909, the following stipulation was entered, into between the parties: “It is agreed between the parties that on the coming in of the jury on January 11, 1910, the court may, in the presence of the attorneys for the parties hereto, question the jurors who- tried this cause concerning the manner of arriving at their verdict, in order to ascertain whether the same was given through mistake or misapprehension, and that in the meantime the undersigned will not discuss the matter with any of said jurors.” Upon January 11, 1910, in accordance with such stipulation, the court examined the several jurors, and upon, such examination it was elicited that some of the jurors intended by their verdict that from the amount of damages found for defendant there should be -deducted by -the court the amount of the note sued upon; while the others understood that by their verdict, not only *417was the defendant to recover the amount of said verdict, but that the note should be canceled, or, in other words, that defendant should g-et his damages besides being freed from the payment of said note. The plaintiff upon January 31, 1910, moved for a new trial, basing his motion among other things upon (1) irregularities in the proceedings of the jury; (2) misconduct of the jury; (3) insufficiency of the evidence to justify the verdict. So far as the first and second of said grounds are concerned, the motion .was based upon the evidence of said jurors in relation to their understanding as to the effect of the verdict. This motion for a new-trial was denied, and the cause is now before us upon an appeal from the judgment and from the order denying a new trial.
[1] Appellant urges the insufficiency of the evidence to sustain the verdict. The evidence in this case is quite voluminous, and no good could follow the incorporation of same into this opinion. It is sufficient to state that we have carefully considered the same, and, while there is ample evidence to support a verdict for plaintiff and some things proven which would tend to affect the weight which a jury would give to the testimony of defendant, yet there is sufficient testimony which, if believed, would justify the jury in bringing in the verdict returned herein, and under the rule so frequently announced by this court, namely, that this court will not disturb the verdict when there is conflicting evidence upon the material questions at issue, the verdict must stand. Spaulding v. Pitts, 26 S. D. 78, 127 N. W. 610.
[2] In considering the motion for new trial urged upon the grounds of irregularities in the proceedings of the jury and misconduct of the jury, it must be borne in-mind that at the time the testimony of the jurors was taken no motion for new trial was pending. The effect of taking such testimony was merely to preserve same in the form of depositions rather than in the form of affidavits, and such 'testimony stood in exactly the same situation as would affidavits if they had been taken with a view of after-wards using them upon a motion for a new trial. An entirely different situation.would -have been presented if, at the time such evidence was taken, there had been pending a motion for a new *418trial and such testimony received thereon without objection. In such case, if the testimony bore upon any matter which could be urged as a ground for a new trial, it would have been before the court, free from any objections based upon the competency of the jurors to impeach their own verdict.
[3] There can be no question but that the rule is well settled, as stated in the authorities cited by the appellant and as has been held by this court, that “the evidence of the jurors will not be received to impeach the jury’s verdict.” This simply means that it will not be so received when properly objected to. In the case at bar, when the testimony of the jurors was offered upon the motion for new trial, it was objected to. We believe such objection was timely, and that respondent was not called upon to interpose any objection at the time the jurors were examined by the court.
[4] We must not overlook another fact. That a juror misconstrued the effect his verdict might have and the extent of the relief to which either party would be entitled thereunder does not prove any irregularities in the proceeding of the jury; neither does it prove any misconduct on the part of the jury. At the most, it indicates a certain degree of incompetency on the part of several jurors, but incompetency of jurors is not made, by the statute of this state, any grounds for setting aside a verdict which has been received and accepted by a court. It follows that even if the motion for new trial had been before the court at the time these jurors were examined by such court, and their testimony was received in support of such motion, and so received without objection so that the trial court had been entirely free to consider the same and give it full force and effect, yet such court would have been bound to deny the motion for new trial so far as these grounds were concerned, as neither of the grounds urged would in the slightest degree be sustained by the evidence before the court.
The judgment and order appealed from are affirmed.
CORSON, J., dissenting.