Mr. Justice Bean
delivered the opinion of the court.
1. Defendant contends that the trial court erred in excluding oral evidence as to the contents of a letter written by S. W. Purdy to J. H. Van Keuren in regard to locating defendant, concerning which the testimony [182]*182of Van Keuren in behalf of defendant was taken by deposition, as follows:
“State what those negotiations were, giving circumstances ?
“A. I received a letter from S. W. Purdy from Oregon, stating—(Objected to by counsel for plaintiff).
“Q. Where is that letter?
“A. I haven’t the letter.
“Q. Have you looked for the letter?
“A. I looked for it. It was on the desk, and the Purdys had access to the desk.
“Q. You were unable to find the letter?
“A. Yes, sir.
“Q. You may state its contents then ?”
Plaintiff’s counsel objected to oral testimony in this regard, for the reasons (1) that the letter was the best evidence, and proper foundation had not been laid for the admission of oral testimony relative thereto; and (2) that this letter from S. W. Purdy was from one not a party to the action, upon which latter point it would seem the court sustained the objection, as the statement of the witness that he had endeavored to find the letter and was unable to do so was unchallenged by any cross-examination. To this ruling defendant duly saved an exception. Witness’ answer to the excluded question was:
“It stated that if Mr. Highbee and I had any friends in Idaho that wished locations there, if we stood good for .them, we could send them down, and they would locate these parties, and the deal would practically be with us.”
Further testifying that the writer of the letter was a brother of the plaintiff, J. T. Purdy. They were working together in the timber business, and he and his partner paid the location fees to Purdy. While S. W. Purdy was not a party to the action, the evidence strongly tends to show that he was an active participant in the trans[183]*183action, and that it was, partly at least, on account of this letter that the several men came to Oregon and were located upon claims by plaintiff. It also appears that plaintiff had made no examination of the claims, but that his brother, S. W. Purdy, had. In our opinion á person cannot avail himself of the benefit of an arrangement made by another, either as his agent or as an interested party, and at the same time disavow the authority of the writer of the letter pertaining to the transaction. The latter part of the letter is material in tending to show with whom the deal was to be consummated. The negotiations having been between the Purdys on one side and Van Keuren and the locators on the other, the defendant was entitled to have all the circumstances connected therewith submitted to the jury for a determination as to what the agreement really was, and whether or not plaintiff was authorized to make payment to, or settlement with, Van Keuren or his firm.
2. After the evidence was submitted the court gave, among others, the following instruction, to which defendant’s counsel duly saved an exception:
“As I have stated to you, there has been some evidence introduced which it is claimed tends to show than Van Keuren had a settlement with the plaintiff, and allowed him a credit in that settlement. Under the evidence, as it has been admitted in this case, I instruct you that there has been some testimony introduced for your consideration as to a settlement of this claim for $300, and I instruct you in this behalf that if you find the plaintiff and J. H. Van Keuren had such settlement, and that this claim against the defendant was credited to the plaintiff in such settlement with plaintiff’s consent, then you. must find for the defendant, even though a dispute arose between the parties as to the settlement subsequently, but, upon the other hand, if you should find from the evidence that the defendant did have a settlement or paid Van Keuren, but that the contract was as plaintiff alleged in his complaint, and unauthorized, then plaintiff would [184]*184be entitled to recover, notwithstanding that he did have some kind of a settlement with Van Keuren. This case depends upon the issues that are made here—that is, on the question of employment—and, if the plaintiff has maintained these issues by a preponderance of the evidence, then he is .entitled to recover in this action, otherwise not.”
In order to better understand this instruction, we carefully notice those previously given. In the one immediately preceding the court in referring to the evidence tending to show a settlement between Van Keuren and plaintiff said:
“That is introduced for the purpose of showing what the facts are in regard to the contract.”
And further on:
“You will see that the question resolves itself under the issues as to what was the nature of the employment, if the plaintiff was employed. Was he employed by the defendant, or was he simply acting for Van Keuren, and if he was employed by the defendant and performed these services, and there was an agreed price, then the plaintiff is entitled to recover.”
• The defendant urges objection to the last part of the instruction set out in full:
“Upon the other hand, if you should find from the evidence that the defendant did have a settlement or paid Van Keuren, but that the contract was as plaintiff alleges in his complaint, and was unauthorized, then plaintiff would be entitled to recover, notwithstanding that he did have some kind of a settlement with Van Keuren.”
The following sentence, “This case depends upon the issues that are made here—that is on the question of employment—” it is claimed tends to narrow the instruction, and practically takes from the jury the question of payment or settlement by plaintiff with Van Keuren in any event. Taking all the instructions together, it would seem they were to the effect that if the jury found that [185]*185the contract was made by defendant with plaintiff, and the services were performed at an agreed price, then the plaintiff was entitled to recover, notwithstanding defendant may have made a settlement with Van Keuren, and the latter had settled with and paid plaintiff for the services, or that he was authorized by plaintiff to receive payment.
3. Defendant requested the court to give the following instruction:
“If you find from the evidence that J. H. Van Keuren was acting under the authority of the plaintiff in securing the defendant for location, and made an agreement with the defendant for the fees, then I instruct you that a payment to Van Keuren was a payment to plaintiff, and you must find for the defendant.”
While this instruction is not explicit, and does not clearly present the question as to whether Van Keuren was authorized to make settlement or receive payment, we think the substance thereof should have been given, and that the matter of settlement was not fully submitted to the jury. Plaintiff’s counsel contends that the defendant was not entitled to any instruction with reference to the settlement with Van Keuren, for the reason that defendant had not pleaded payment to plaintiff.
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Mr. Justice Bean
delivered the opinion of the court.
1. Defendant contends that the trial court erred in excluding oral evidence as to the contents of a letter written by S. W. Purdy to J. H. Van Keuren in regard to locating defendant, concerning which the testimony [182]*182of Van Keuren in behalf of defendant was taken by deposition, as follows:
“State what those negotiations were, giving circumstances ?
“A. I received a letter from S. W. Purdy from Oregon, stating—(Objected to by counsel for plaintiff).
“Q. Where is that letter?
“A. I haven’t the letter.
“Q. Have you looked for the letter?
“A. I looked for it. It was on the desk, and the Purdys had access to the desk.
“Q. You were unable to find the letter?
“A. Yes, sir.
“Q. You may state its contents then ?”
Plaintiff’s counsel objected to oral testimony in this regard, for the reasons (1) that the letter was the best evidence, and proper foundation had not been laid for the admission of oral testimony relative thereto; and (2) that this letter from S. W. Purdy was from one not a party to the action, upon which latter point it would seem the court sustained the objection, as the statement of the witness that he had endeavored to find the letter and was unable to do so was unchallenged by any cross-examination. To this ruling defendant duly saved an exception. Witness’ answer to the excluded question was:
“It stated that if Mr. Highbee and I had any friends in Idaho that wished locations there, if we stood good for .them, we could send them down, and they would locate these parties, and the deal would practically be with us.”
Further testifying that the writer of the letter was a brother of the plaintiff, J. T. Purdy. They were working together in the timber business, and he and his partner paid the location fees to Purdy. While S. W. Purdy was not a party to the action, the evidence strongly tends to show that he was an active participant in the trans[183]*183action, and that it was, partly at least, on account of this letter that the several men came to Oregon and were located upon claims by plaintiff. It also appears that plaintiff had made no examination of the claims, but that his brother, S. W. Purdy, had. In our opinion á person cannot avail himself of the benefit of an arrangement made by another, either as his agent or as an interested party, and at the same time disavow the authority of the writer of the letter pertaining to the transaction. The latter part of the letter is material in tending to show with whom the deal was to be consummated. The negotiations having been between the Purdys on one side and Van Keuren and the locators on the other, the defendant was entitled to have all the circumstances connected therewith submitted to the jury for a determination as to what the agreement really was, and whether or not plaintiff was authorized to make payment to, or settlement with, Van Keuren or his firm.
2. After the evidence was submitted the court gave, among others, the following instruction, to which defendant’s counsel duly saved an exception:
“As I have stated to you, there has been some evidence introduced which it is claimed tends to show than Van Keuren had a settlement with the plaintiff, and allowed him a credit in that settlement. Under the evidence, as it has been admitted in this case, I instruct you that there has been some testimony introduced for your consideration as to a settlement of this claim for $300, and I instruct you in this behalf that if you find the plaintiff and J. H. Van Keuren had such settlement, and that this claim against the defendant was credited to the plaintiff in such settlement with plaintiff’s consent, then you. must find for the defendant, even though a dispute arose between the parties as to the settlement subsequently, but, upon the other hand, if you should find from the evidence that the defendant did have a settlement or paid Van Keuren, but that the contract was as plaintiff alleged in his complaint, and unauthorized, then plaintiff would [184]*184be entitled to recover, notwithstanding that he did have some kind of a settlement with Van Keuren. This case depends upon the issues that are made here—that is, on the question of employment—and, if the plaintiff has maintained these issues by a preponderance of the evidence, then he is .entitled to recover in this action, otherwise not.”
In order to better understand this instruction, we carefully notice those previously given. In the one immediately preceding the court in referring to the evidence tending to show a settlement between Van Keuren and plaintiff said:
“That is introduced for the purpose of showing what the facts are in regard to the contract.”
And further on:
“You will see that the question resolves itself under the issues as to what was the nature of the employment, if the plaintiff was employed. Was he employed by the defendant, or was he simply acting for Van Keuren, and if he was employed by the defendant and performed these services, and there was an agreed price, then the plaintiff is entitled to recover.”
• The defendant urges objection to the last part of the instruction set out in full:
“Upon the other hand, if you should find from the evidence that the defendant did have a settlement or paid Van Keuren, but that the contract was as plaintiff alleges in his complaint, and was unauthorized, then plaintiff would be entitled to recover, notwithstanding that he did have some kind of a settlement with Van Keuren.”
The following sentence, “This case depends upon the issues that are made here—that is on the question of employment—” it is claimed tends to narrow the instruction, and practically takes from the jury the question of payment or settlement by plaintiff with Van Keuren in any event. Taking all the instructions together, it would seem they were to the effect that if the jury found that [185]*185the contract was made by defendant with plaintiff, and the services were performed at an agreed price, then the plaintiff was entitled to recover, notwithstanding defendant may have made a settlement with Van Keuren, and the latter had settled with and paid plaintiff for the services, or that he was authorized by plaintiff to receive payment.
3. Defendant requested the court to give the following instruction:
“If you find from the evidence that J. H. Van Keuren was acting under the authority of the plaintiff in securing the defendant for location, and made an agreement with the defendant for the fees, then I instruct you that a payment to Van Keuren was a payment to plaintiff, and you must find for the defendant.”
While this instruction is not explicit, and does not clearly present the question as to whether Van Keuren was authorized to make settlement or receive payment, we think the substance thereof should have been given, and that the matter of settlement was not fully submitted to the jury. Plaintiff’s counsel contends that the defendant was not entitled to any instruction with reference to the settlement with Van Keuren, for the reason that defendant had not pleaded payment to plaintiff. While the answer of defendant is general in its allegations, he does allege a payment to Van Keuren, and claims that Van Keuren was a principal in the making of the contract, and, in so far-as the introduction of the testimony is concerned, the case seems to have been tried as though the question of settlement was properly in issue; the trial court appearing to have treated the answer as an allegation of payment. No objection was made by plaintiff to the introduction of testimony upon this ground, nor the question in any way raised, except by motion to strike out the evidence. If defendant paid or settled with Van Keuren for the amount involved in this case, [186]*186and Van Keuren settled therefor with, or paid the same to, plaintiff, then it would be immaterial' whether Van Keuren was acting as principal or agent in making the agreement in the first instance. In other words, if plaintiff settled the fee in question with Van Keuren or Van Keuren & Highbee, he would thereby ratify the act of Van Keuren in making the agreement, and settling with, and receiving payment from, defendant.
4. Defendant also assigns error in the ruling of the court sustaining the objection of counsel for plaintiff to the question propounded to Herbert Harris, a witness in defendant’s behalf:
“Did J. T. Purdy on that trip say anything to you about the payment of the location fee for your claim?”
This question suggests no material answer. No answer thereto or to the other questions not mentioned, to which objections were made and sustained, was tendered, and the record does not disclose what evidence the defendant intended to elicit from the witness. This court therefore cannot say that the rights of the defendant were in any way prejudiced by the exclusion of the evidence.
For the reasons indicated, the judgment of the lower court is reversed, and a new trial ordered.
Reversed.