Horn v. Brand

HART, J. (after stating the facts). The note sued on was introduced in evidence and shows that the defendant owed the amount for which judgment was rendered if the note was a valid obligation: The note was executed pursuant to the terms of the contract and this brings us to the question of whether or not the condition in the contract was a condition precedent or a condition subsequent. In the case of Cooper v. Green, 28 Ark. 48, the court speaking with reference to a deed said: ‘ ‘ Conditions precedent are, as the term implies, such as must happen before the estate dependent upon them can arise or be enlarged, while conditions subsequent are such as, when they do happen, defeat an estate already vested.” A condition subsequent in the law of contracts, is one which, if performed or violated, as the case may be, defeats the contract. 13 C. J. 565. Tested by this rule we are of the opinion that the condition in the contract in the present case was a condition subsequent. Neither of the parties offered any evidence in the court below as to whether or not the defendant was placed in charge of the liquidation of the affairs of the Bank of Casa. In the case of a condition subsequent, the happening of which, is to defeat the cause of action, the burden of proof rests on the defendant. 13 C. J. 764, Sec. 957. In the case of Thayer v. Connor, 5 Allen (Mass.) 25, the court held, (quoting from syllabus) “If a written promise to pay money is given with a condition providing that it shall be void upon the happening of a certain event, the burden of proof, in an action against the maker, is upon the defendant to show that the event has happened.” The record does not show that the defendant offered to prove that he failed to get possession of the claims against the Bank of Casa and that he was not placed in charge of the liquidation of its affairs. It follows that the judgment must be affirmed.