delivered the opinion of the court March 21st, 1887.
After the parties had made an oral agreement the landlord prepared a writing and sent it to the tenants for their signatures. This writing referred to in the testimony as the lease, was not signed by the parties, and it .is not evidence of their agreement unless it is established that they assented to its terms. The landlord claims that it sets forth the contract, but the tenants deny that they so agreed. It was submitted to the jury whether the “lease” expresses the contract, and if so they were instructed to find for the plaintiffs, and annex a list of the property which could be lawfully removed ; subject to the opinion of the court whether the contract set out in said paper gave the landlord the right to remove new machinery.
The defendant’s second point was reserved. Had the “ lease ” therein mentioned been signed by the parties, it would have been competent for the court to have reserved the question of construction. It was equally the right of the court to make the reservation when it was the province of the jury to determine whether the unsigned instrument set out the terms of the lease. Had the jury found that it did, then its construction would have been for the court. But the verdict put the alleged written lease out of the case, and the fifth assignment is not sustained.
As the cause was submitted, the jury found that the memorandum made bj^ Marr was not a correct statement of the contract. That memorandum was made near the time of the *548making of an oral agreement testified to by the witness called by defendant. It contains no note of obligation to leave new machinery on the premises. Though not established as evidencing the contract, the paper was important as affecting the testimony of the witness, Marr. The portion of the charge complained of in the fourth assignment is part of the instructions relative to the testimony of Marr, and we think it is not erroneous.
The plaintiff in error cites numerous authorities in support of the proposition, that the construction of a written contract is exclusively the province of the court, and when a party requests the court to construe a writing in evidence, it is the duty of the court to do so and not submit it to the jury for construction. That is denied by nobody. But when the making of such contract is in dispute it is in the province of the jury to say whether it is established.
The jury failed to find that the contract is set out in either the unsigned lease or memorandum, but they did find that the tenants were entitled to recover certain machinery which they had furnished for use in their business. They were instructed as to the right of the tenants to remove the fixtures furnished by them, in case there was no agreement that they should become the property of the landlord; and that if the tenants agreed that the new machinery put on the premises should belong to the landlord, the verdict should be for defendant. Of all that the court said upon this subject, there is no complaint, except the following sentence :
“ If, however, from all the evidence, you come to the conclusion that they did not agree, but that their agreement was, that all the repairs and additions and improvements to the old machinery only, shoxrld be and remain the property of the landlord, if you find that that is all the plaintifffe agreed to, then they have the right to remove the new machinery, and in that ease your verdict should be for the tenants, the plaintiffs.”
That is taken from the body of the charge. The first clause obviously relates to an alleged agreement mentioned in the sentence immediately .preceding. With the context, the sentence complained of is free of error. By itself, it might seem inconsistent, if not confusing, to say that if the parties did not agree, and did make an agreement; but, read in connection with what preceded, the meaning is plain. The first assignment of error is not well taken.
Without objection or exception one of the tenants testified that after he received the “lease” he sent a letter by mail to Folsom, properly addressed, “telling him that he surely did hot mean that he should take all oxxr machinery.” It is not alleged that the court erred in admitting the testimony, but *549it is contended that the instruction that, whether the landlord ■received the letter or not, the sending of it by the tenant was evidence to repel the presumption that would otherwise arise that he assented to the lease as written is error. The depositing a letter properly addressed with the postage prepaid in the post-office is prima facie evidence that the person to whom it was addressed received it. Evidence that a letter was so sent demanding payment of rent is competent to rebut the allegation that no demand had been made: Briggs v. Hervey, 130 Mass., 186. The second assignment cannot be sustained.
Nor is there error in the instructions set out in the third assignment. Cook’s letter dated May 7th, 1881, “was an acceptance, of the lease,” if Folsom were not mistaken in his testimony. If Cook testified the truth, that letter was not intended as an acceptance, for the parties had not agreed on the terms as written in the “lease,” and the clause stating that there was no issue between them, referred to the condition of the fixtures and the cost of their repairs. The references and meaning of the letter could only be determined by the aid of other testimony, and the whole was properly submitted.
Judgment affirmed.