Elrod v. Purlee-165 Ind. 239. complete copies of 'all papers filed and entries made, and that it contains, in compliance with the precipe, the original bill of exceptions filed in his office June 30, 1903, "approved by the court, and ordered made a part of the record herein." It is clear that the evidence is not in the record, because there is nothing to show, either directly or inferentially, that the document purporting to be the original bill of exceptions was filed in the office of the clerk after it was signed by the trial judge. §638a Burns 1901, Acts 1897, p. 244; §641 Burns 1901, §629 R. S. 1881; Allen v. Hamilton (1902), 157 Ind. 621; Acme Cycle Co. v. Clarke (1901), 157 Ind. 271; Beall v. Union Traction Co. (1901), 157 Ind. 209; Windfall Nat. Gas, etc., Co. v. Terwilliger (1899), 152 Ind. 364; Chicago, etc., R. Co. v. Cason (1898), 151 Ind. 329; Robinson v. Dickey (1896), 143 Ind. 214. The act of March 9, 1903 (Acts 1903, p. 338), has nothing to do with the question. Error is sought to be predicated upon the giving and the refusing of certain instructions. Appellee's counsel insist that the instructions which were given are not in 2. the record, because they are not shown to have been filed, as required by the act of 1903 (Acts 1903, p. 338, §1), and also by the former practice. In their reply brief counsel for appellants contend that said act does not govern, since the cause was tried before it became operative, and they further contend that the instructions given are in the record under the practice as it existed at the time of the trial. The record shows that each of the instructions set out in the transcript as given by the court and excepted to by appellants has upon it the marginal notation provided for by $544 Burns 1901, §535 R. S. 1881; and there is also in the transcript a copy of an order-book entry, made upon the conclusion of the trial, which contains these words: "All of the instructions given by the court herein are ordered filed." Assuming that the former practice governs, it must be held that the instructions given are not in the VOL. 165-16 Elrod v. Purlee-165 Ind. 239. record. Section 542 Burns 1901, §533 R. S. 1881, provides: "All instructions given by the court must be signed by the judge, and filed, together with those asked for by the parties, as a part of the record." The entry of the court should have shown that the instructions were filed. Thompson v. Thompson (1901), 156 Ind. 276; Cleveland, etc., R. Co. v. Ward (1897), 147 Ind. 256; Ohio, etc., R. Co. v. Dunn (1894), 138 Ind. 18; Van Sickle v. Belknap (1891), 129 Ind. 558; Butler v. Roberts (1889), 118 Ind. 481; Ft. Wayne, etc., R. Co. v. Beyerle (1887), 110 Ind. 100; Childress v. Callender (1886), 108 Ind. 394; Blount v. Rick (1886), 107 Ind. 238; Landwerlen v. Wheeler (1886), 106 Ind. 523; Aufdencamp v. Smith (1884), 96 Ind. 328; Weik v. Pugh (1883), 92 Ind. 382; McIlvain v. Emery (1882), 88 Ind. 298; Heaton v. White (1882), 85 Ind. 376; O'Donald v. Constant (1882), 82 Ind. 212; Supreme Lodge, etc., v. Johnson (1881), 78 Ind. 110. As was said in Hadley v. Atkinson (1882), 84 Ind. 64, 66: "The record nowhere shows that these instructions were filed as a part of the record. Without this safeguard, instructions might get into the given by the court." record without having been Having reached the conclusion that the instructions which were given are not in the 3. record, we must heed the further insistence of ap pellee's counsel that, upon this state of the record, we must presume that the instructions which were given embraced, in substance, all proper instructions which were tendered by appellants and refused. Cleveland, etc., R. Co. v. Ward, supra; Lake Erie, etc., R. Co. v. Holland (1904), 162 Ind. 406, 63 L. R. A. 948, and cases cited. Judgment affirmed. ON PETITION FOR REHEARING. PER CURIAM. It seems scarcely necessary to say that the file mark of the clerk of the court below upon appellants' precipe for a record does not show that the bill of ex Ohio Oil Co. v. Detamore-165 Ind. 243. ceptions was filed in the clerk's office after it was signed by the judge. As to the instructions given, it is evident that they are not in the record, as appellants have not complied with the practice, as laid down in Thompson v. Thompson (1901), 156 Ind. 276. The petition for a rehearing is overruled. OHIO OIL COMPANY ET AL. v. DETAMORE. [No. 20,430. .Filed March 28, 1905. Rehearing denied June 29, 1905.] 1. PLEADING. Complaint. - Corporations. Presumption from 2. SAME. Complaint.-Initial Attack on Appeal.-Sufficiency.— 4. SAME. Intention. Parties. Contradictory Provisions. How Ascertained.-The intention of the contracting parties to a contract containing incongruous, contradictory and absurd provisions will be determined by viewing such contract as a whole and not from a consideration of the detached portions thereof. p. 248. 5. SAME.-Gas and Oil Lease.-Interpretation.-A gas and oil lease, giving defendant, in consideration of $120, all of the oil and gas under certain land, with the right to explore, and in case no well should be completed within six months the lease to be void, unless defendant should pay $120, in which event defendant should have another six months, said lease being subject to continual renewal by succeeding payments, and which lease contains no promise by defendant to do anything, amounts to a six-month option preventing lessor, after receiving the consideration, from leasing to another during such time. p. 249. Ohio Oil Co. v. Detamore-165 Ind. 243. 6. CONTRACTS.-Mutuality.-A gas and oil lease giving the lessee the option to pay a certain sum and thus extend the lease is operative against the lessor during such extension only upon payment of such sum, contract rights being correlative and mutual. p. 250. 7. SAME. Renewal. Waiver. Where the lessee had abandoned his lease by nonpayment, as provided therein, and such lease had become void, the fact that the lessor permitted the lessee to "come back," upon payment of the amount that would have been due by a continuance of the old lease, constitutes a new lease, by parol, upon a new consideration. p. 251. 8. SAME.-Gas and Oil Lease.-Abandonment.-A lease, giving the lessee six months in which to put down a well and the option to continue the lease upon payment of a certain sum at the beginning of each six-month period thereafter, is inoperative where seven months have passed without the payment of any money or the drilling of any successful well, the lessee having, for such period, abandoned the premises. p. 252. 9. SAME.-Revival After Suit Brought.-Where the lessee has lost his rights under a lease and the lessor has commenced an action to quiet his title, the lessee by reëntering over the lessor's objections can not revive any rights to the premises. p. 252. 10. EVIDENCE.-Question Assuming Facts Not Proved. It is not error to refuse to permit the question whether the witness knew the expenses of constructing "three wells," where but two wells were constructed before suit was brought. p. 252. 11. APPEAL AND ERROR.-Supreme Court Rules.-Briefs.—Questions relating to the admission and exclusion of evidence must be presented as required by clause 5 of rule 22 of the Supreme Court. p. 252. 12. SAME.-Erroneous Instructions.-Right Result.-Where the judgment of the trial court is manifestly correct, the giving of erroneous instructions is not reversible. p. 253. From Huntington Circuit Court; Levi Mock, Special Judge. Suit by Levi Detamore against the Ohio Oil Company and another. From a decree for plaintiff, defendants appeal. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590. Affirmed. Kenner & Lucas, for appellants. Watkins & Morgan, Field W. Swezey and Robert M. Van Atta, for appellee. Ohio Oil Co. v. Detamore-165 Ind. 243. HADLEY, C. J.-On August 29, 1895, appellee and wife entered into a contract with the Huntington Light & Fuel Company whereby appellee, in consideration of $120, in hand paid, conveyed to the light and fuel company all the oil and gas in and under 242 acres of described real estate, together with the right to enter thereon for the purpose of drilling and operating for oil, gas or water, and to erect such structures and pipe-lines as should become necessary for the production and transportation of oil, gas or water from the premises. Appellee was to have one-eighth of all the oil produced and saved, to be delivered in pipe-lines connected with the wells. If gas only was found, appellee was to have $100 each year for each well. Further stipulations were in these words: "In case no well is completed within six months from this date, then this grant shall become null and void, unless second party [light and fuel company] shall pay said first party $120 in advance for each six months thereafter that such completion is delayed, and second party shall have the right to use sufficient gas, oil or water to run all necessary machinery for operating said wells, and also the right to remove all its property at any time. All conveyances and agreements herein set forth between the parties hereto shall extend to their successors, heirs, executors and assigns." * The Huntington Light & Fuel Company assigned its interest in the contract to appellant Ohio Oil Company. After the initial payment of $120 at the time of the execution of the contract appellant Ohio Oil Company and its assignor advanced a like sum three times at the end of consecutive six-month periods, thus postponing to August 29, 1897, the time in which a well should be completed. In March, 1897, a well was sunk on the land by the company, which proved to be what is termed a "dry hole," whereupon the company took down and removed from the premises its drill and other appliances. No further periodical payments were made or tendered, and no further step was taken |