The plaintiff was employed at a fixed price per 1,000 feet to saw logs into lumber for the defendants. A non-suit was submitted to as to the defendant Eox, and the other defendant answered. He averred that, by the contract between him and the plaintiff, the lumber was not to be paid for by the defendant until it was shipped and sold by the defendant and the money derived from the sale. The testimony on this point was conflicting and contradictory. His Honor charged the jury *567 “ that, if they should find the contract to be that the lumber was to be shipped and sold before the saw bill was to be due and payable, then, if Edwards had instructed Eox to sell the lumber, it would be placing the lumber beyond the control or reach of the plaintiff, thereby making the saw bill all due and payable, and that they should so find that it was due.”
In this instruction there was error. The effect of the contract, if the jury should have found it to be that the lumber was not to be paid for until the defendant had shipped and sold it, might be as his Honor said it would be, but still the parties had the right to make such a contract if they chose, and if they had made such a one the plaintiff was bound by his own failure to protect his interests.
New Trial.