Sec 609

"When property is vested in A. subject to a condition subsequent that on the happening of a certain contingency it is to revert to B., the burden is on B. to show that the property has thus reverted. "Prima facie, every contract is permanent and irrevocable, and it lies upon a person who says it is revocable or determinable to show either some expression in the contract itself, from which it is reasonably to be implied that it was not intended to be permanent and perpetual, but was to be in some way or other subject to determination."2 - Yet the question is complicated by the circumstances just mentioned, that a condition is in one aspect a condition precedent; in another aspect a condition subsequent. In such case we must hold that the burden is on the actor; i. e., on the party seeking to establish a point.3

Burden is on party setting up devolution of property by condition subsequent.

1 Barrie v. Smith, Sup. Ct. Mich. 1881.

2 James, L. J., Llanelly R. R. v. London R. R., L. R. 8 Ch. 949; Duncan v. Findley, 6 S. & R. 235.

3 Wh. on Ev. sec 353; Cage v. Acton, 1 Ld. Ray. 515; Gray v. Gardner, 17.

Mass. 188.

51*.

Sec 610

Ordinarily, as we have seen, a breach of warranty does not give a right to rescind except in case of fraud or of honest misapprehension.1 The parties, however, may agree that on breach of warranty the goods may be returned, and the contract rescinded, though the right is usually limited to a specific time, after which the right to claim rescission ceases to exist even as to latent defects not detected until after that period.2 sec 611. As we have already seen, when there is a contract of "sale or return," the intention being that the purchaser shall take the property with a right to return within a certain limit, the title vests in the purchaser, the condition being a condition subsequent.3 sec 612. The right to determine contracts of service depends upon the terms of the particular contract interpreted by usage.4 That a contract may be made to terminate and a forfeiture imposed on the decision of an architect or other referee has been already shown.5 sec 613. In an indenture of apprenticeship, the master's covenant to teach the apprentice is conditioned on the apprentice's willingness to learn, while the apprentice's covenant to serve is conditioned on the master's willingness to direct and teach. If the apprentice deserts or refuses to learn, defying or escaping the master, this relieves the master from his covenant;6 though mere misconduct on the part of the apprentice, not amounting to refusal to be taught, does not relieve the master from the duty of teaching, though it may subject the apprentice to a cross-action, or, under our practice, to a set-off for damages, should he sue the master for failure in the latter's covenants.1 The apprentice's covenant to serve is conditioned on the master's readiness to direct and teach.2 And in either case performance is excused by absolute incapacity produced by sickness or other necessity.3

Contract may give right to rescind on breach of warranty.

On contracts of " sale or return" title vests.

Eight to determine contracts of service dependent upon concrete case.

Indentures of apprenticeship mutually dependent.

1 See supra, sec 214, 282; Gompertz v. Denton, 1 C. & M. 207; Head v, Tattersall, L. R. 7 Ex. 7; Thornton v. Wynn, 12 Wheat. 192; Scranton v. Trading Co., 37 Conn. 130; Voorhees 1. Earl, 2 Hill, 288.

2 Smart v. Hyde, 8 M. & W. 723; Chapman v. Gwyther, L. R. 1 Q. B. 463; see Bryant v. Isburgh, 13 Gray, 607.

3 Supra, sec 589.

4 Infra, sec 718; Leake, 2d ed. 673; Baxter v. Nurse, 6 M. & G. 938; 1 C. &.

K. 10; Fairman v. Oakford, 5 H. & N. 635. The conditions on which such contracts may be terminated, and the effect of such termination are hereafter distinctively discussed. Infra, sec 716-718.

5 Supra, sec 594; Faunce v. Burke, 16 Penn. St. 469.

6 Leake, 2d ed. 663; Hughes v. Humphreys, 6 B. & C. 680; Rayment v. Minton, L. R. 1 Ex. 244; supra, sec 323. See Blunt p. Melcher, 2 Mass. 228; Holbrcok v. Bullard, 10 Pick. 68.