
    * William Gray versus Oliver Gardner and Others.
    A promise was to pay a sum of money, on condition that, if a certain quantity of oil should arrive at certain ports, within two fixed days, both inclusive, the promise should be void: in an action upon this promise it was holden that the burden was on the defendants to prove the arrival of the oil; and that to constitute such arrival, the vessel must be moored within the time stipulated.
    Assumpsit on a written promise to pay the plaintiff 5198 dollars, 87 cents, with the following condition annexed, viz., “ on the condition that if a greater quantity of sperm oil should arrive in whaling vessels at Nantucket and New Bedford, on or between the first day of April and the first day of October of the present year, both inclusive, than arrived at said places, in whaling vessels, on or within the same term of time the last year, then this obligation tr be void.” Dated April 14, 1819.
    
      The consideration of the promise was a quantity of oil, sold by the plaintiff to the defendants. On the same day another note unconditional had been given by the defendants, for the value of the oil, estimated at sixty cents per gallon; and the note in suit was given to secure the residue of the price, estimated at eighty-five cents, to depend on the contingency mentioned in the said condition.
    At, the trial before the chief justice, the case depended upon the question whether a certam~ vessel, called the Lady Adams, with a cargo of oil, arrived at Nantucket on the first day of October, 1819, about which fact the evidence was contradictory. The judge ruled that the burden oUproving the arrival within the time was ori~tEe defendants; and further that, although the vessel might have, wifhlnTFe time, gotten within the spaceJwhiTfíf might be called she should have come to~Schsrri?rimVe^Heenmoored. somewhere within that space Trefore thehour oftwelve following the first day of OctoberpiR" order to have arrived, within the meaning of the contract.
    The opinion of the chief justice on both these points was objectedtoByThedefendantsTandthef^estions^velm^avMr^TrTt was wrong on either point, a new trial was to be had ; otherwise judgment was to be rendered on the verdict, which was found for the plaintiff. f * 189 ] * Whitman, for the defendants. As the evidence at the trial was contradictory, the question on whom the burden of proof rested, became important. We hold that it was on the plaintiff. This was a condition precedent. Until it should happen, the promisé^dltíottal^ eBe^r~Oñ^Ehe~occürreñce^f a certain contingent eveFtTTEe promise ivas to be binding, and not otherwise. To entitle himself to enforce the promise, the plaintiff must show that the contingent event has actually occurred.
    On the other point saved at the trial, the defendants insist that it was not required by the terms of this contract that the vessel should be moored. It is not denied that such would be the construction of a policy of insurance containing the same expression. But every contract is to be taken according to the intention of the parties to it, if such intention be legal, and capable of execution. The contemplation of parties to a policy of insurance is, that the vessel shall be safe before she shall be said to have arrived. So it is in some other maritime contracts. But in that now in question, nothing was in the minds of the parties, but that the fact of the arrival of so much oil should be known within the time limited. The subject matter in one case is safety, in the other it is information only. In this case the vessel would be said to have arrived, "n common understanding, and according to the meaning c£ the parties .
    
      F. C. Gray, for the plaintiff.
    
      
       Vide 6 Mass. Rep. 313, Bill & Al. vs. Mason.
      
    
   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.  