Contracts—General Verdict—Unanswered Special Interrogatory.— The jury having found a general verdict for the plaintiff, it may well be true that the jury must be considered to have found an acceptance by the defendant of the work under the contract sued on, though the special interrogatory calling for a finding thereon was unanswered.

Id.—Drilling Oil Well—Action for Price—Acceptance of Work— Insufficiency of Evidence.—In this action to recover the contract price of drilling an oil well, under the terms of which the plaintiff was to drill the well “into the oil sand or to a depth of 3,500 feet if required” by the defendant, it is held that the evidence was insufficient to justify a finding that the defendant accepted the well when drilled to a depth of 3,215 feet.

Id.—Instruction Based on Untenable Theory Erroneous.—An instruction in such ease to the effect that if the jury found from the evidence that the defendant accepted the well at 3,215 feet, and thereafter requested the plaintiff to straighten the hole and easing, and that the plaintiff thereupon did so in a workmanlike manner as provided for in the contract, but that the defendant refused to accept the well as straightened, then the plaintiff was entitled to judgment under the terms of the contract, was erroneous, since such instruction was based upon the plaintiff’s untenable theory of the case that the well was accepted as complete when it was drilled to 3,215 feet, and it wholly ignored the question of actual drilling “into the oil sand, or to a depth of 3,500 feet if required by” the defendant.

Id.—Trial and Instruction upon Erroneous Theory—Construction of Contract by Jury.—In such case the trial of the action and instructions to the jury upon the theory that it was t'o construe the contract were erroneous, since, the terms of the contract being ascertained, the court should have construed the same, and instructed the jury as to the meaning thereof.

Id.—Drilling into Oil Sand—Meaning of “Oil Sand.”—In the contract in the instant ease, construed in the light of its purpose and terms, the provision that the well should be drilled “into the oil sand or to a depth of 3,500 feet if required by” the defendant was not complied with by drilling into any oil sand at any depth; but the well having been drilled to secure oil in paying quantities, the jury should have at least been instructed that the “oil sand” contemplated by the contract was “producing oil sand,” and that in default of such producing oil sand the defendant was justified in requiring the well to be drilled to a depth of three thousand five hundred feet, unless the phrase “into the oil sand” had some other special local meaning or customary construction with reference to which the parties contracted.

Id.—Construction of Contract by Court—Extrinsic Evidence in Aid of Construction.—-Where extrinsic evidence is introduced to aid in the construction of a contract, it is still the duty of the court to construe the contract in the light of such evidence.

Id.—Disputed Extrinsic Facts—Hypothetical Instructions.—If extrinsic facts introduced in aid of the construction of a contract are disputed, the case may go to the jury with hypothetical instructions to render a verdict one way if certain facts are found and another way if the facts are found differently.

Id.—Mixed Question of Law and Fact—-Correct Application of Law by Jury Assumed.—In the instant case, the question of the completion of the well having been submitted to the jury as a mixed question of law and fact, the supreme court on appeal must assume that the jury, not being clothed with power to decide the law incorrectly, applied the law correctly to the facts; in other words, that they correctly construed the contract as requiring the drilling of the well into “producing oil sand” and applied that construction to the facts presented to them.

Id.—Insufficiency of Evidence.—Evidence in the instant ease examined and found insufficient to justify the finding of the jury that the well was drilled into the oil sand according to the contract.

Id.—Instructions—Confusing Instruction as to Custom.—In view of the fact that no oil was produced from the well, and that the burden was on the plaintiff to establish the completion of the well, an instruction given by the court at the request of the plaintiff that, if there was no custom as to who should test the oil sand, the plaintiff did not have to show that it tested t'he oil sand, unless the contract expressly or impliedly so provided, could only tend to confuse the jury, the question as to whose duty it was by custom or otherwise to test the well not being properly involved in the case.