The controversy in this case is in regard to instructions given by the trial court to the jury concerning a contract for an electric sign, the material portions of which, so far as written, are as follows:
“Upon the conditions hereinafter set forth, the Company agrees to equip the premises or location, as the case may be, of the Customer at 539 Commercial Street, in Astoria, Oregon, with a system of electrical wiring and connections for the operation of one electric sign of 37-25 watt lamps, and to furnish and install said sign for the Customer and also to furnish the necessary lamps for such service included in the monthly payment hereinafter named. The sign to be as follows: One double face Novelite Interchangeable three line reading board 3'6"xl0' and 144-8" changeable letters and space plates the word ‘Crystal’ will be on top of sign in 12" Novelite letters the word ‘Crystal’ is to flash on and off the interchangeable letters are to burn all the time.”
*509It will be observed that the contract stipulates that the company will equip the premises and furnish and install a sign for the defendants. The kind of sign is specified, but the manner in which it is to be installed or hung is in no way described in the written instrument. Under these circumstances, and without any exception being saved to the introduction of testimony, the court admitted evidence as to what the agreement was touching the manner of the installation of the sign, to the effect that it was to be at right angles with the show building of the defendants so that it might be read by the people approaching.the sign from either direction. After stating the contention of the defendants as set forth in their answer the court charged the jury that the duty of proving the contract rested upon the plaintiff, also:
“That the contract alleged and set out in the complaint was entered into and that the Pacific Power and Lig’ht Company substantially performed all of the provisions of that contract as required. In considering the contract, you will notice that there is nothing in the language of the contract which indicates how the sign is to be erected with reference to the front of the building — whether it is to be laid out along the face of the building or whether it is to extend across the face of the sidewalk, or down the sidewalk. It is not shown by the contract. So that is a question for you to determine, and you can determine it by the terms of the contract and if that does not satisfy your mind you can determine it or resort to circumstances surrounding the transaction, taking into consideration the purposes for which the sign was to be erected and the idea or thought that must have been in the mind of the parties at the time that the contract was entered into, and in that way determine what was the intention of the parties with reference to the fact that at the time they entered into the contract, and if you find from the contract and the evidence in support thereof that it was the duty of the Pacific Power *510and Light Company under the terms of this contract to erect and equip this sign in a manner substantially perpendicular to the face of the building so that the building on the inside of the sidewalk would have attached to it a sign which would stand out lengthwise or in a northerly course across the sidewalk, and you find that the Pacific Power and Light Company have not done so, but have given it an angle or position which is not substantially in compliance with that required by the contract then you would have a right to find that they have not complied with the terms of the contract and have not performed their contract and in that event the defendants would not be liable to them until they had so installed the sign as required. ’ ’
The court further explained among other things that a slight or immaterial deviation was not sufficient to invalidate the contract. Counsel for plaintiff saved an exception to the instruction to the jury for the reason that the court referred to and based the instruction upon the second further and separate defense pleaded by the defendants, the objectionable portion of which pleading, as understood, is as follows:
“That under and by the terms of said agreement the said sign as contracted for was to be so placed by said company on the said wall of said picture show-house so that the same would hang directly over the walk in front of said picture show-house and on a straight line and parallel with the length of said picture show-house; that said sign so attempted to be delivered by said company, together with the brackets upon which the same was hung, had about a length or between twelve and thirteen feet; that when said company attempted to deliver said sign it placed and hung the same on the north wall of said house, at a point directly opposite said wires and cables as mentioned being so situated, it was impossible to permit the said sign to hang as agreed and stipulated and it was necessary, by reason of the situation of said *511wires and cables that the said sign hang only in a position with one face against the wall of said house or protrude at an angle until the same came in contact with said wires and cables, thus permitting but one face of the said sign to be read by persons on the street, and it being impossible for persons at a distance from the show-house to see or read the sign * * ”
It is further averred in the answer that defendants . requested the company to install the sign so that it could be read by persons approaching it from either direction. It is the contention of plaintiff that the written contract does not include a requirement for the placing of the sign as desired by plaintiff.
"While no exception was saved to the testimony, the real objection to the instructions of the court, as the record is understood, is that the charge is based upon oral evidence as to the agreement which is not contained in the written contract. There is no claim that oral evidence was submitted to the jury contradicting or varying the terms of the written contract in any respect where that memorandum expressed the terms agreed upon. The writing being silent as to the manner in which the sign should be installed it was competent for the defendants to show, and for the jury to consider, that the details or specifications of the manner in which the sign should be installed were agreed upon between the parties to the contract although not embodied in the written memorandum.
The rule of evidence that all preliminary negotiations and agreements are to be deemed merged in the final settled instruments executed by the parties does not prevent a contract from being partly oral and partly evidenced in writing. The question of whether an entire contract was reduced to writing, or an independent collateral agreement was made, is one of *512fact for the jury, if there is any evidence to sustain such parol agreement: 6 R. 0. L., p. 640, § 55; Hines v. Wilcox, 96 Tenn. 148 (33 S. W. 914, 54 Am. St. Rep. 823, 34 L. R. A. 824, 832; note, 3 L. R. A. 308; Roberts v. Bonaparte, 73 Md. 191 (20 Atl. 918, 10 L. R. A. 689); McNeil v. Boston Chamber of Commerce, 154 Mass. 277 (28 N. E. 245, 13 L. R. A. 559); Horn v. Hansen, 56 Minn. 43 (57 N. W. 315, 22 L. R. A. 617); Barker v. Bradley, 42 N. Y. 316 (1 Am. Rep. 521); Thurston v. Ludwig, 6 Ohio St. 1 (67 Am. Dec. 328); Turner v. Abbott, 116 Tenn. 718 (94 S. W. 64, 8 Ann. Cas. 150, 6 L. R. A. (N. S.) 892); American Contract Co. v. Bullen Bridge Co., 29 Or. 549 (46 Pac. 138).
Mr. Wigmore treats of the subject at length in his work on Evidence. We quote in part:
“The most usual controversy arises in cases of partial integration, i. e., where a certain part of a transaction has been embodied in a single writing, but another part has been left in some other form. Here obviously the rule against disputing the terms of the document will be applicable to so much of the transaction as is so embodied, but not to the remainder. * *
“(1) Whether a particular subject of negotiation is embodied by the writing depends wholly upon the intent of the parties thereto. * *
“(2) This intent must be sought where always intent must be sought (ante, Sections 42, 1714, 1790), namely in the conduct and language of the parties and the surrownding circumstances. The document alone will not suffice. What it was intended to cover cannot be known till we know what there was to cover”: 4 Wigmore on Ev., § 2430.
The rule is stated in 22 C. J., page 1144, Section 1531, thus:
“The parol evidence rule does not preclude the reception of parol evidence with reference to a matter evidenced by the writing, where such evidence relates to a matter in pais, or is of such a character that it *513does not tend to vary or contradict the written instrument. Thus there is no objection to the admission of evidence which is offered not to contradict or vary the terms of a written agreement, but simply to explain how it is to be carried out. * * ”
See Salem Kings Products Co. v. Ramp, ante, p. 329 (196 Pac. 401, 409); Atlantic Terra Cotta Co. v. Masons’ Supply Co., 180 Fed. 332 (103 C. C. A. 462); Kansas City etc. R. Co. v. Smithson, 113 Ark. 305 (158 S. W. 555, Ann. Cas. 1916C, 568); Shopper Pub. Co. v. Skat Co., 90 Conn. 317, (97 Atl. 317); Fountain v. Hagan Gas Engine etc. Co., 140 Ga. 70 (78 S. E. 423); Foote etc. Co. v. Southern Wood Preserving Co., 11 Ga. App. 164 (74 S. E. 1037); Gardner v. Denison, 217 Mass. 492 (105 N. E. 359, 51 L. R. A. (N. S.) 1108); Willis v. Fernald, 33 N. J. L. 206; Smith Premier Typewriter Co. v. Rowan Hardware Co., 143 N. C. 97 (55 S. E. 417); Easton v. Woodbury, 71 S. C. 250 (50 S. E. 790); Missouri etc. R. Co. v. Stark Grain Co., 103 Tex. 542 (131 S. W. 410); Emerson v. Stratton, 107 Va. 303 (58 S. E. 577); Crawford v. Workman, 64 W. Va. 10 (61 S. E. 319); Mann v. Paper Co., 41 N. B. 199 (5 Dom. L. R. 596, 11 East L. R. 81); McLean v. Crown Tailoring Co., 29 Ont. L. 455 (5 Ont. W. N. 217, 15 Dom. L. R. 353); Bulmer v. Brumwell, 13 Ont. App. 411.
The plaintiff has no reason to complain because the court allowed the jury to take into consideration oral evidence as to how it was agreed between the company and the defendants that the sign should be installed.
The defendants are not held to any strict rule as to how such signs are customarily erected. It does not appear, in so far as it is observed, that the agreement as shown by the evidence differed in any way *514from the customary practical way of advertising by means of such a sign. It was not an unreasonable demand for tbe defendants to require the sign to be placed a few inches or feet away from the pole mentioned, so that they could have a double faced sign, if it was so understood and agreed. A one-eyed sign would not fill the requirement of such a stipulation. The proceedings excepted to by counsel for plaintiff fairly submitted the cause to the jury. The language of the instruction may not be perfect, but it is not subject to the challenge of plaintiff.
The judgment should be affirmed.