Baltimore & Ohio Rail Road v. Resley

Tucr, J., delivered the opinion of this court* No- error can be imputed to the ruling of the court below, based on the terms of the original contract, and the modification thereof, as interpreted by this court on the former appeal. And, as the additional evidence does not materially alter the case, those prayers which were then held to be correct must govern the same questions arising on the present record. At the trial the plaintiff offered three prayers,, the first of which was granted because conceded, as we are informed by the exception, and the other two refused. The defendants offered thirteen, of which the first, second, third, fourth, tenth and twelfth were granted; the sixth, seventh and thirteenth were refused, and the eighth, ninth and eleventh granted, with the addition of words, designed to leave to the jury the question of good faith on the part of the engineer of the company, in making the estimates referred to in the prayers-.

It does not appear whether the fifth was granted or refused. This, however, can make no difference, because, if granted, the defendant cannot complain, and, if refused, there was no exception reserved to that ruling of the court, therefore, it is not before us for review. The effort on the part of the company was to bind the plaintiffs by the estimates made by their engineer, on the ground that, according to the contract and the modification, they were to be the measure of compensation for doing the work. The plaintiffs, on the contrary, insisted that, although where a contract contains such a stipulation, the rules announced by the defendant prevails, yet where an estimate has been made by the proper officer of the company, it is open to the contractor to show that it is not binding by reason ⁴⁴¹ of the want of good faith in making it.

This qualification of the principle is not denied by the company, where there is mala jides, though it coni ends that there is no evidence in this cause from which the jury could draw such a conclusion. This court, on the former appeal, reversed the judgment below on the fourth and fifth prayers, using this language: “We see no defect in the fourth prayer. It requires the jury to find all the necessary facts to warrant the legal conclusion which it deduces from them.” Ss * s “We discover, also, no error in the fifth prayer.” It will be remarked that these prayers submitted the question of bona Jides in making the esfimates to the jury, and it must be intended that the court thought there was evidence on that question proper for the jury, because, without such a construction, they could not have been sustained-, in view of the ground taken by the plaintiffs against the binding and conclusive effect of the estimates. It seems to have been the understanding of the defendant that that was the gist of the inquiry upon the estríñales, because all its prayers involving them, as a basis of adjustment, proceeded upon the hypothesis that the jury should find there was no fraud, before they could avail the company.

The court said there was no defect in thg fourth. To have been perfect, it must have submitted to the jury all questions of fact, of which there was legally sufficient evidence, on which the other side had a right to rely in answer to the defence set up against their claim, one of which answers was fraud in making the estimates. The argument of the appellants on the former appeal implied that the question of good faith was an ingredient in the cause, and their concession of the plainíilfs’ first prayer on this appeal and some of its own, show the same thing. But, in the present state of the record, we think we need not impure whether there was evidence of fraud or bad faith in making the estimates, as preliminary to determining whether the ruling of the court was correct on the 8ih, 9lh and 11th prayers, in annexing the inquiry on that question as an addition thereto, because, as we have stated, that very question ⁴⁴² had. gone to the jury, with the defendant’s assent, as a part of the plaintiffs’ prayer, and it could not afterwards object to the same inquiry being made part of its own prayers.

What is admitted to be the law of a case cannot be gainsayed before the jury. The defendant, after conceding a prayer involving a certain question of fact, could not deny that such an inquiry was before the jury, any more than it could have argued against the law of instructions given without such assent. The same rule applies here. If the court had granted these prayers, without the addition, there would have been different •instructions on the same part of the case—one side insisting that, according to its prayers, the question of fraud was open; the other insisting that no such question was to be considered, because its prayers had been granted without