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]*441of 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]*442had. 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 reference to that inquiry. We cannot perceive how, with such directions, and the arguments of counsel that might have been predicated on each, the jury could have found the issues according to the law of tire case, though it is perceptible that they might have been confused and misled. All the defendant’s prayers, therefore, which involve a consideration of the estimates, are incorrect, if the question of good faith in making them is overlooked, and this we think applies to the 6th, 8th, 9th and 11th.
It is supposed, however, that the sixth prayer is relieved of this objection, because, as is said, it embodies the 3rd prayer, which was granted by the court. If there be any well-founded doubt whether the necessary facts are iireluded, it was a proper ground for rejecting it. Prayers should be so framed as to instruct, not embarrass, juries, and where the court think they may have that effect, it is not their duty to place a construction on the language employed by counsel, (which, in some cases, might defeat the counsel’s purpose, his interpretation being different from that of the court,) but it may reject the prayer as offered. We have an illustration here—one side insisting that all the facts set out in the third prayer are embodied into the sixth, while the plaintiffs contend that only the. modification of the contract is incorporated. And we are admonished, by the ingenuity displayed by counsel in sup[443]*443port of their respective theories of this very prayer, that erroneous notions of the law might be applied to the case, and, consequently, the ends of justice be perverted, according to the construction that might be accepted by the jury, when the law should be certain, and not depend on the interpretation counsel might place on the court’s instructions. In out opinion, however, (his prayer does not submit to the jury the finding of the facts stated in the third prayer, which is distinctly done by (he seventh, but refers merely to the modification of the contract, and, on the facts asserted, without reference to the making of estimates or the hona Jides of their preparation, seeks to exclude evidence offered by the plaintiffs, the very object of which, among other things, appears to have been to show that there was gross negligence, amounting to fraud, in making them.
The seventh prayer is well framed, as far as concerns the facts stated in the third, but it leaves to the jury a similar question of law to that for which the eleventh prayer, on the former appeal, was held to have been properly rejected.
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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]*441of 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]*442had. 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 reference to that inquiry. We cannot perceive how, with such directions, and the arguments of counsel that might have been predicated on each, the jury could have found the issues according to the law of tire case, though it is perceptible that they might have been confused and misled. All the defendant’s prayers, therefore, which involve a consideration of the estimates, are incorrect, if the question of good faith in making them is overlooked, and this we think applies to the 6th, 8th, 9th and 11th.
It is supposed, however, that the sixth prayer is relieved of this objection, because, as is said, it embodies the 3rd prayer, which was granted by the court. If there be any well-founded doubt whether the necessary facts are iireluded, it was a proper ground for rejecting it. Prayers should be so framed as to instruct, not embarrass, juries, and where the court think they may have that effect, it is not their duty to place a construction on the language employed by counsel, (which, in some cases, might defeat the counsel’s purpose, his interpretation being different from that of the court,) but it may reject the prayer as offered. We have an illustration here—one side insisting that all the facts set out in the third prayer are embodied into the sixth, while the plaintiffs contend that only the. modification of the contract is incorporated. And we are admonished, by the ingenuity displayed by counsel in sup[443]*443port of their respective theories of this very prayer, that erroneous notions of the law might be applied to the case, and, consequently, the ends of justice be perverted, according to the construction that might be accepted by the jury, when the law should be certain, and not depend on the interpretation counsel might place on the court’s instructions. In out opinion, however, (his prayer does not submit to the jury the finding of the facts stated in the third prayer, which is distinctly done by (he seventh, but refers merely to the modification of the contract, and, on the facts asserted, without reference to the making of estimates or the hona Jides of their preparation, seeks to exclude evidence offered by the plaintiffs, the very object of which, among other things, appears to have been to show that there was gross negligence, amounting to fraud, in making them.
The seventh prayer is well framed, as far as concerns the facts stated in the third, but it leaves to the jury a similar question of law to that for which the eleventh prayer, on the former appeal, was held to have been properly rejected. Besides this, the effect of the prayer, if granted, would have been to repudiate the estimate made by the officers of the company, after it had been offered as a basis of settlement, according to the new arrangement, and, throughout the trial, relied upon by the defendant as binding on the contractors, and prayers had been granted at the instance of the company, based on its validity. This estimate had been made by the proper officers, and, as we understand the evidence, the engineer had refused to settle on any other basis. If the plaintiffs were bound by if at all, they certainly were not unless made in good faith, and the prayer leaves out of view that inquiry.
The remaining question relates to the 13th prayer. We may well suppose that counsel in a cause comprising so many facts and propositions of law, would endeavor to abridge the labors of the trial, by reference to previous proceedings, instead of setting them out at length, and this is often done. Here the reference is not to the fifth prayer, as found in the procedendo record, but to the printed report of the former-ap* [444]*444peal. Apart from the unusual manner of asking the instruction, even conceding that the prayer had been introduced into' the cause by the agreement of counsel for the admission of the former record, we think it was properly refused. It is a well-settled rule, that the refusal of a prayer is no ground of reversal, if the same has been substantially granted before, for the reason that such refusal does the party no injury, at the same time that it prevents embarrassment by a complication of unnecessary propositions of law and fact. Now, supposing the fifth prayer, and the fourth, to which it refers, to embody all that the plaintiffs had a right to require in a prayer coming from the opposite side, it is quite plain that the same point, on the same facts substantially stated, had been presented to the juiy by the plaintiffs’ prayer, and those of the defendant, which were granted; that is to say, that the estimates, if made bona fide, were conclusive in the defendant’s favor, and, if not so made, they were not binding on the plaintiffs.
(Decided July 29th, 1859.)
Finding no ground for disturbing the judgment, it is affirmed.
Judgment affirmed.