The facts are stated in the opinion of the court.

William H. Jordan, for Kennedy & Shaw Lumber Company, Appellant.

The consent of J. S. Antonelle was a condition precedent of the liability of the defendant under the contract with plaintiff. (Civ. Code, sec. 1436; Van Horne v. Dorrance, 2 Dall. 304; Fed. Cas. No. 16,857; Northup v. Northup, 6 Conn. 196; Cohey v. Lehman, 79 Ill. 173; Packard v. Van Schoick, 58 Ill. 80; Hambly v. Delaware Ry. Co., 21 Fed. 541; Perryman v. Trustees etc., 14 Bush. 75; Griggs v. Moore, 168 Mass. 354; Cowan v. Phænix Ins. Co., 78 Cal. 181; McLaughlin v. Clausen, 85 Cal. 322; Pacific Rolling Mills v. English, 118 Cal. 123; Smith v. Lining Co., 111 Cal. 309; Frisbie v. Moore, 51 Cal. 516; Hodges v. Holeman, 1 Dana, 50; Veazie v. City of Bangor, 53 Me. 50.) The condition was not pleaded, and the variance was fatal. (Daley v. Russ, 86 Cal. 114; Barron v. Frink, 30 Cal. 486; Holmes v. Richet, 56 Cal. 307.1)

A. A. Sanderson, for Antonelle & Doe, Interveners, Appellants.

The money of the firm could not be paid over to a third person without the consent of the firm. The consent of J. S. Antonelle, as a member of the firm, was a condition precedent. (Bouvier’s Law Dictionary, title “Conditions Precedent”; McLaughlin v. Clausen, 85 Cal. 322; Cowan v. Phænis Ins. Co., 78 Cal. 181.) The complaint was insufficient. (4 Ency. of Plead. & Prac., pp. 627, 628.)

A. Everett Ball, for J. S. Antonelle, Intervener, Appellant. Antonelle was entitled to any balance under the agreement. The debts of the partnership must be discharged before any individual debt can be paid. {Chase v. Steel, 9 Cal. 64; Golden State etc. Works v. Davidson, 73 Cal. 389.)

Prevention of performance by the action of the defendant excused performance by the plaintiff. (Civ. Code, sec. 1512;. Houghton v. Steele, 58 Cal. 421, 424; Hawley v. Keeler, 53 N. Y. 114; Marshall v. Craig, 1 Bibb, 379.2) Conditions precedent are not favored in law. {McDonald v. Chosen Friends,. 78 Cal. 58; Front-Street R. R. Co. v. Butler, 50 Cal. 574; Randol v. Scott, 110 Cal. 595, 597; Deacon v. Blodgett, 111 Cal. 416; Tipton v. Feitner, 20 N. Y. 423.) The ascertainment of the balance by the mode fixed by the contract was a condition precedent to any action on the part of plaintiff.. {United States v. Robeson, 9 Pet. 319, 326; Hamilton v.. Liverpool etc. Ins. Co., 136 U. S. 242.) The provision for the-consent of Antonelle was a covenant, and not a condition precedent. (Civ. Code, sec. 1442; 2 Parsons on Contracts, 7th ed., sec. 511; Wharton on Contracts, sec. 555; Holladay v. Frisbie, 15 Cal. 631, 635; Paschall v. Pasmore, 15 Pa. St. 295, 303; Barruso v. Madan, 2 Johns. 144, 148; Front-Street R. R. Co. v. Butler, 50 Cal. 574, 577; Tipton v. Feitner, 20 N. Y. 423, 432.) The plaintiff elected to declare on the contract according to its legal effect without setting out in hm verba,, which was proper practice. (Stoddard v. Treadwell, 26 Cal. 294, 303; Love v. Sierra Nevada etc. Co., 32 Cal. 639, 650;1 Hallock v. Jaudin, 34 Cal. 167; White v. Soto, 82 Cal. 654; Murdock v. Brooks, 38 Cal. 596, 603.) There was no misleading variance. (Code Civ. Proc., sec. 469; Carter v. Baldwin, 95 Cal. 475, 478; Amador Gold Mine, Limited, v. Amador Gold Mine, 114 Cal. 346, 348.) Any defects were cured by the answer. (Daggett v. Gray, 110 Cal. 169; Vance v. Anderson, 113 Cal. 532, 536; Pomeroy’s Remedies and Remedial Rights, sec. 579; Schenck v. Hartford etc. Ins. Co., 71 Cal. 28; Cohen v. Knox, 90 Cal. 266, and cases cited on p. 268.) Antonelle & Doe have nothing to complain of if the money is paid to plaintiff under the contract to which they are not parties. Antonelle has no standing as an intervener.