Gray v. Gardner

17 Mass. 187

Opinion

Parker, C. J.

The very words of the contract show that there was a promise to pay, which was to be defeated by the happening of an event, viz., the arrival of a certain quantity of oil, at the specified places, in a given time. It is like a bond with a condition ; if the obligor would avoid the bond, he must show performance of the condition. The defendants, in this case, promise to pay a certain sum of money, on condition that the promise shall be void on the happening of an event. It is plain that the burden of proof is upon them; and if they fail to show that the event has happened, the promise remains good.

*The other point is equally clear for the plaintiff. Oil [ * 190 ] is to arrive at a given place before twelve o’clock at night. come to anchor Fe said to have arrived. The vessel is coming untiTsKeTdrops anchor, or is moored. She may, sink, or take fire, and never arrive, however near she may be to her portT-'It” is so in contractlTFf insurance; and the same reason applies to a case of this sort. Both parties put themselves upon a nice point in this contract; it was a kind of wager as to the quantity of oil which should arrive at the ports mentioned, before a certain period. They must be held strictly to their contract, there being no equity to interfere with the terms of it.

Judgment on the verdict.