Gray (P) agreed to sell sperm oil to Gardner (D) for a down payment and a later payment of $5,198.87 conditioned upon its voidance by the arrival of a greater quantity of sperm oil on or between the first day of April and the first day of October of the then present year at Nantucket and New Bedford. The consideration of the promise was a quantity of oil sold by P to D. On the same day another note unconditional had been given by D 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 but to depend on the contingency of the condition. The issue before the court was the arrival of a vessel called the Lady Adams. The trial court ruled that the burden of proving the arrival within the time was on D and arrival meant at anchor or moored before the hour of twelve following the first day of October. D objected. The verdict went to P and D appealed.

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