and who were called into the case in the District Court after the agreement and order of reference, agreed that the liability of defendant depended entirely upon the result of a settlement between Powell and Rogers, and that such settlement, and the ascertainment thereby as to whether defendant was liable at all, and if so, to what extent, was a condition precedent to any right of action which plaintiffs might have against defendant, and cited Tipton v. Feitner, 20 N. Y. 425; Stow v. Wadley, 8 Johns. *468124; Hyde v. Boston and Bane Co. 21 Pick. 90. They also argued that the agreement between the attorneys as to the order of reference was not binding, as it changed the contract of the parties, and cited BorJcelm v. N. B. & M. Ins. Co. 38 Cal. 628; Merritt v. Wilcox, ante, p. 238.

Burch & Griffith, also for the Appellant.

By the agreement plaintiffs’ assignor could never have maintained an action against Rogers, nor could he have offset said $1,500 in any action ex contractu said Rogers might have brought against him. (Cuxon v. Chadley, 3 Barn. & C. 591; Wharton v. Walker, 4 Barn. & C. 163; French v. French, 2 M. & G. 644; Thomas v. Shilleber, 1 Mees. & W. 124.)

S. M. Buck, for the Respondents.

A settlement of the partnership accounts between Rogers and Powell, as contemplated at the time of the sale of the sheep by Powell to Hoglan, can only be made in a proceeding to which both Rogers and Powell are parties.

Judgment reversed and cause remanded, with directions to permit the parties to amend the pleadings so as to make Rogers and Powell parties to the action.