Mr. Chief Justice Bean,
after stating the facts, delivered the opinion of the-court.
Although the complaint alleges and the answer denies that the lumber rejected by plaintiffs’ buyers in Chile was inferior in quality and did not conform to the contract between plaintiffs and defendant, no evidence was offered by the plaintiffs and none admitted on behalf of the defendant in relation to the matter. The plaintiffs relied entirely upon the fact that their buyers had objected to the quality of the lumber at the port of discharge, and that defendant had authorized them to appoint the Chilian firm to settle and adjust such dispute. In other words, the position of the plaintiffs is that the agreement between them and the defendant in reference to' the settlement of the dispute, and the subsequent action had *565thereon, was in fact a submission to arbitration and an award, and should be so treated. This was the view of the trial court; hence it excluded the testimony offered by the defendant showing or tending to1 show that the lumber was in fact of the quality specified in its contract with the plaintiffs. With this general view of the position of the parties, and the theory upon which the cause was tried in the court below, we proceed to notice such of the assignments of error as we deem material.
1. The first and most important one is the action of the court in giving the following instruction to the jury: “In construing the letter written August 4 by Balfour, Guthrie & Company, and its answer upon August 22, they must be construed together, and in the light of all the surrounding circumstances.” The principal objection to this instruction is that it left the construction of the letter of August 22 to the jury, when it should have been construed by the court as a matter of law. The question as to whether the defendant authorized and empowered the plaintiffs to settle for it the dispute in regard to the lumber at the port of discharge is an important point in the case, and plaintiffs’ authority in the premises is contained in the letter of August 22. The previous oral conversation between Burns and Williams was merged in the writing, so far as it related to the power or authority of the plaintiffs to act for the defendant in settling the controversy. It is admitted by Williams, and he so testifies, that, after he returned to his office, at Burns’ request and for the purpose of putting plaintiffs’ authority in writing, he added the clause to the letter of August 22 in reference. to the quality of the cargoes of the Airlie and the Ballochmyle, and the statement that “we will be satisfied with any settlement you may make for us in adjusting the matter at point of destination.” So that the question of plaintiffs’ authority must be. determined from the letter, and its construction, like that of any other writing, was a question for *566the court, and not for the jury: 11 Enc. PI. & Prac. 78 et ■seq.; Long Creek Bldg. Assoc. v. State Ins. Co., 29 Or. 569" court="Or." date_filed="1896-10-19" href="https://app.midpage.ai/document/long-creek-building-assn-v-state-insurance-6897184?utm_source=webapp" opinion_id="6897184">29 Or. 569 (46 Pac. 366); Goddard v. Foster, 84 U. S. (17 Wall.), 123; Battershall v. Stephens, 34 Mich. 68" court="Mich." date_filed="1876-04-20" href="https://app.midpage.ai/document/battershall-v-stephens-7928271?utm_source=webapp" opinion_id="7928271">34 Mich. 68.
2. By the charge of the court, however, that question was submitted to. the jury, and they were left to construe the letter, and to determine, as a matter of fact, whether by it the defendant authorized the plaintiffs to settle the controversy about the cargoes of the two vessels. -The letter of August 22 should; of course, be construed in connection with that of August 4, Williams’ testimony as to how the latter clause came to be added, and the surrounding circumstances; and, when so construed, it seems to us clearly to authorize the plaintiffs, through the Chilian firm, to settle or adjust the matter, and, if necessary, to. appoint agents at the port of discharge to act for them in the premises. It is argued that the letter authorized the plaintiffs only to. settle the matter, and that- they could not delegate their authority to. some one in Chile) although they might employ persons there to ascertain the facts and report to them. But it must be remembered that the controversy as to the quality of the lumber, to which the letter refers, was at the port of discharge, and not in Portland, and that under defendant’s contract it was bound to appoint a representative on the spot to attend to 'and settle the same. It was this contract that Burns was insisting that Williams should comply with by sending an agent or representative to Chile, or by appointing some person there to act for defendant. Williams declined to do so, •and agreed to be satisfied with any settlement that plaintiffs might make “at point of destination.” He knew at the. time that plaintiffs had an allied house in Chile, and that all of 'their business on that coast was done through such house. 'He must therefore necessarily have intended that the settlement should be effected in the same way.
It is next insisted that the court erred in refusing to with*567draw' from the jury the question of fraud. It is urged in support of this position that the allegations of the answer are insufficient to constitute the defense of fraud, and that there is no- proof if the allegations had been sufficient. As the case must be reversed and remanded for a new trial, defects in the answer, if any, may be cured by amendment; and, as the evidence may be different on another trial from that contained in the record, we shall pass this question without deciding.
There are several other questions made in the briefs and argued by counsel, but as they are closely allied to the principal one discussed, and may not arise on another trial, we shall refrain from discussing them at this time.
Reversed.
Decided 4 May, 1901.
On Petition for Rehearing.
Mr. Chief Justice Bean
delivered the opinion.
3. The objection to the instruction complained of was a general one, and challenged its sufficiency as a matter of law (Nickum v. Gaston, 24 Or. 380, 33 Pac. 671, 35 Pac. 31); and hence plaintiffs were entitled to contend in this court that it was erroneous, because it left the construction of a written instrument to the jury, although the trial in the court below may have proceeded in the main on the theory that the plaintiffs’ authority rested partly in parol and partly in writing, and was therefore a question of fact for the jury. Indeed, it would seem natural that such a theory should have prevailed; for it w^as not until after plaintiffs’ testimony was all in, and Mr. Williams, the manager of defendant company, testifying* on its behalf, said that the clause in the letter of August 22 in reference to the settlement of the dispute concerning the quality of the lumber was added by him, at Mr. Burns’ request, for the purpose of putting plaintiffs’ *568authority in writing, that it appeared that plaintiffs’ authority rested wholly in writing. This, perhaps, explains the reason for the introduction by plaintiffs of some of the testimony referred to- in the petition, and also disposes of the contention that the question of plaifttiffs’ authority was properly submitted to- the jury because it rested partly in parol. We have not considered the question as to whether the agreement between plaintiffs and the defendant in reference to- the settlement of the dispute, and the subsequent action had thereon, was a submission to arbitration and an award, because it is not presented by the record, nor was it discussed at the argument. All we decide is that the defendant, by the letter of August 22, authorized the plaintiffs, through their Chilean house, to- settle and adjust the dispute at the port of discharge concerning the quality of the lumber. Whether in making the settlement the plaintiffs and their representatives acted honestly and in good faith is a question hereafter to be determined. The petition is denied.
Rehearing Denied.