The case of Gray v. Gardner, 17 Mass. 188, seems fully in point as to the present case. That was a promise to pay $5198 to the plaintiff, on the condition that if a certain quantity of oil should arrive at certain ports on or before a day named, “ then this obligation to be void.” The case was thus : the plaintiff had sold to the defendants a large quantity of oil, and the price, above sixty cents a gallon, was to depend upon the quantity of oil in market at a given day, and for this the above obligation was given, to be void on the condition therein named. The court held that the burden of proving the happening of the event named in the condition was upon the defendants. In the opinion there given it was said, “ 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 case of Jennison v. Stafford, 1 Cush. 168, presented the question of the burden of proof, where the consideration of a promissory note was denied, and, it being shown to be a promise to forbear to sue a third person for six months, the court held that the burden of proof was not on the payee to show that he had forborne to sue, but on the maker of the note to show that the payee had not forborne.
In recurring to the amended declaration upon which the present case was tried before the jury, it will be seen that the contract, as set forth, was a sale and delivery by the plaintiff to the defendant, of certain furniture and a furnace used in a store, and the promise was to pay a certain sum therefor; but as- the vendee might by the acts of a third person be deprived of the use of the store, and the value of the articles to the vendee be *27thereby diminished or destroyed, the promise to pay for the same, to the extent of thirty dollars, was to be void if the promisor shou'd be removed from the building. The happening of this event was to operate to defeat the promise, and as it seems to us, upon the authority of the case of Gray v. Gardner, the burden of proof was on the defendants to show that the event had happened.
So also the principle, often stated, that when the subject matter is peculiarly within the knowledge of a party, the burden is on him to prove the fact that is relied upon as showing that the promise is discharged, may have its application here, in considering whether upon the whole case, as disclosed, the burden is on the defendant to show that he was removed from the store, if he would avail himself of the condition annexed to his promise. Exceptions sustained