Opinion by (after stating the facts as set out in the statement of facts) :
The jury found in favor of the plaintiff; which establishes the fact that the defendants notified the plaintiffs that they would not accept the well and would not pay for drilling it unless the casing was extended past the stream of water which came in at a point eighty feet below the fifth sand.
If under the terms of the contract the plaintiffs were bound to do the work in this manner they are not entitled to recover. If the contract did not require the work to be done in this manner, then the notice by the defendants that they would not pay for it unless so done must be considered as an election upon their part to cease operations under the contract at any time, and the plaintiffs must be held to have completed the well and be entitled to compensation for the depth drilled. The manner in which and the time at which the plaintiffs were required to case the well must be ascertained from the fifth and sixth clauses of the contract, which are in the following language :
“ 5. If water is discovered between the bottom of casing and gas-bearing sand, then the contractor will be required to draw casing, and ream hole and recase to shut off said water without cost to the Kountz Bros. Co.
“ 6. Before drilling into the gas-bearing sand the well shall be shut down for twenty-four hours to admit being tested by the superintendent of the Co.”
It is manifest that “ the gas-bearing sand ” referred to in the sixth clause was a stratum, the location of which in the geological measures of that field was so well known that the driller by keeping a record of the superimposed strata through which the well passed would know when his drill was about to enter that stratum. Before drilling into that sand he was required to cease operations for twenty-four hours in order that the agent of the defendant company might thoroughly examine the condition of the well and be satisfied that it was free from water before the drill was permitted to penetrate the stratum where they hoped to find the gas. The written contract did not attempt to define the place of that stratum among the measures of that field, but it recognized it as a sand so well known that the operator would know where it was or where it ought to be before he reached it. This was clearly a case for the ad*263mission of parol evidence to determine the location of this stratum, which was so well known that the parties did not take the precaution to incorporate in the written contract any provision which would have rendered its location possible without the aid of oral evidence. The first assignment of error is without merit.
The sixth clause of the contract has reference only to the gas-bearing sand which has been discovered, by previous explorations in that field and become definitely known. It was only before drilling into such sands that the plaintiffs were required to suspend operations for twenty-four hours. This clause refers to a definite and particular stratum. After that stratum had been passed the plaintiffs were not required to case the well' down so as to shut off a vein of water coming-in at a lower level, unless in the actual execution of the work it was discovered that water was coming into the well at some point between the bottom of the casing and some lower and until that time unknown gas-bearing sand. The fifth clause is broader, it refers not to a particular sand but covers any sand which actually produces gas, and would require the plaintiffs to ream down the hole and extend the casing so as to shut off any water coming in between the bottom of the casing and any gas-bearing sand which might be discovered by drilling the well below the deepest gas-bearing sand then known to exist in that field. But, while the fifth clause is thus broad, it entirely omits the stringent provisions with regard to casing and shutting down the well before drilling into the sand which we find in the sixth clause. After the lowest known gas-bearing sand had been passed, the work was experimental; the drill was in unfamiliar measures; the parties could not tell what the next stratum which the drill penetrated might bring forth. If water came in after the deepest known gas-bearing sand had been passed, it could not be said to come in between the bottom of the casing and gas-bearing sand until some lower and previously undiscovered gas-bearing sand was penetrated by the drill. The joint effect of these clauses was to require the plaintiffs to case the well and shut off all water which came in above any known gas-bearing sand before drilling into that stratum, and after all known gas-bearing sands had been passed to continue the drilling to the contract depth, but in case they had *264discovered a new gas-bearing sand they must at once recase the well so as to shut off all water coming in above that newly discovered sand.
There was no evidence that any new gas-bearing sand had been discovered. It was conceded that the well was properly cased above the fifth sand. The plaintiffs offered evidence which, if believed, tended to establish that the fifth sand was the lowest known gas sand in that field, but this evidence was oral and the credibility of the witnesses was for the jury. The learned court below, in the language which is complained of in the second assignment of error practically assumed as an established fact that the fifth sand was the lowest gas-bearing sand and withdrew the consideration of that question from the jury. While the evidence certainly would have warranted the finding of the fact as assumed by the court, we are constrained to hold that the question was for the jury, and the second assignment of error must be sustained.
The court was not requested to charge in the manner suggested in the third assignment of error. To have affirmed the defendants’ request for binding instructions would have been error. The third and fourth specifications are dismissed.
The judgment is reversed and a venire facias de novo awarded.