OPINION1 OF THE 'COURT.
1 The contract sued on in this case is silent as to the time of complete performance and in such case the law requires the same to be performed within a reasonable time from the date of the contract. Cyc. Vol. 9, p. 614, and citations, Neher v. Viviani, et al., decided at this term.
*603Upon, the trial, the court submitted the question of reasonable time to the jury as a question of fact, in paragraphs 12, 13, 14, and 15 of is instructions.
The first three assignments of error are based upon the giving of these instructions.
This question is not an open one on this appeal. The ease was tried upon the same evidence as that upon which the case was decided on the former trial. When the case was before this court upon the former appeal the‘court held:
• “It is sometimes a question of law for the court whether a contract has been performed in a reasonable time, as when it depends upon the construction of a written contract only, or upon undisputed extrinsic facts; but when it depends upon disputed facts extrinsic to the contract it is for the jury. 9 Cyc. 615; Cotton v. Cotton, 95 Ala. 345; Luckhard v. Ogden, 30 Cal. 547; Hill v. Hobart, 16 Me. 164. We think it was a material issue in this case whether the appellee, if he ever in fact completed the well, did so within a reasonable time under all the circumstances in the case. The record shows that a year after the well was commenced appellee hired another party to put down a well within a few feet of the one bored by appellant and that the second well was completed and a good flow of water secured therefrom within three or four months.
The contract between these parties, which is in writing, provided that the work was to commence at a given time and be carried forward to completion “faithfully and continuously,” thus showing the intention of the contracting parties that no more than a reasonable length of time was contemplated for the completion of the well.” Hagerman v. Cowles, 94 Pac. 946.
2 . As will be observed, the court held that upon the evidenee before the court the question should have been submitted to the jury. Upon this issue, therefore, the former decision has become the law of the case and will not be reviewed in this case. Crary v. Field, 10 N. M. 257.
The refusal of the court to give to the jury plaintiffs *604requested instruction Nos. 1, 2, 2a, and 3, are assigned as error.
These instructions raise the only remaining point relied upon in the oral argument by appellant’s counsel, namely, that if appellee, Hagerman, by his conduct and partial payments, accepted the work he waived the time of performance and was bound to pay according to his contract.
By reference to the contract, which is in writing, it will be observed that it provides that appellee shall be required to pay at least fifty per cent of the contract price of the artesian well, monthly, as the work progressed, and the plaintiff admits in his pleadings that sixteen hundred dollars were actually paid pursuant to the contract.
Under the contract, also, the appellee was given the option of causing the work to cease before the well reached a depth of one thousand feet. The appellant contends that because the appellee, Hagerman, made these payments and permitted the appellant, Cowles, to continue the work so long, he should be held to have accepted the work and waived his right to take advantage of the default of the appellant in failing to complete the contract within a reasonable time.
We cannot agree to the correctness of this contention. When the contract was entered into, the appellant, Cowles, was presumed to know the law, that where the contract was silent as to the time of its performance, it must be' performed within a reasonable time. He assumed responsibility for his failure to do so, unless relieved therefrom by some affirmative act of the appellee, indicating his intention to do so.
3 Neither of the acts complained of indicate any such intention on the part of the appellee, as the payments were made as required by the contract regardless of the completion of the well, and the law and the contract required appellant to exercise diligence in the prosecution of the work without regard to the permission of the appellee.. Neither the payments made nor the failure of the appellee to stop the work sooner furnish any evidence of any intention by the appellee to accept the work or waive *605any defense he might have under the law, growing out of the failure of the appellant to perform the contract.
4 Instructions must be based upon the evidence and we hold that there was no evidence to warrant the requested instructions, nor was there error in the refusal of the court to give them.
5 The appellee after the expiration of about eighteen months, notified appellant to stop work upon the well. In so doing he took the responsibility of liability to pay, in the event of the court’s finding that the contract had been performed within a reasonable time. Upon the trial the court among other instructions gave the following :
12. “The evidence shows, and it is not denied, that the defendant stopped the plaintiff from working upon the completion of the Mull well, which was some time in April, 1905. If you believe that at said date a reasonable time for the completion of the well had elapsed from the dale of the contract to drill it and that it had not been completed according to contract then and in such event the defend-an Hagerman had a right to order the plaintiff off the work and would not be liable for the work previously done and in that event you must find for the defendant.”
13. “If on the other hand you believe that at the date of the completion of the Mull well in April, 1905, a reasonable time to complete the Cowles well had not elapsed since it was contracted for, the order to stop work on the well will in law be construed as an exercise by the defendant, Hagerman, of the right given under the contract to stop the plaintiff’s work in advance of a thousand feet, and such .stopping of the work under such circumstances would not prevent the plaintiff from recovering for the work already done at the contracted rate, provided said work had up to that time been done in accordance with the contract. If you believe from the evidence, therefore, that the defendant so stopped the work before a reasonable time had elapsed for its completion and that up to that point where stopped the plaintiff had done the work in a reasonably skillful and workmanlike manner and otherwise in full accordance with the contract, then and in that event the *606plainti.fi: would be entitled to recover the balance due on nine hundred and seventy-seven feet, to-wit, the sum of $1,562.50, the amount sued for.”
6 7 In our opinion these instructions concisely stated the law applicable to the liability or non-liability of the appellee, and the jury having returned a general verdict in favor of the appellee together with a special finding that the appellant had not performed the contract within a reasonable .time, the judgment rendered upon these verdicts, supported as they are by substantial evidence should not be disturbed.
8 There was a count in the complaint upon the “quanturn meruit ” for the value of the labor performed, but as the evidence does not warrant a recovery upon this count it will not be further considered.
The judgment of the court below is affirmed.