Upon the facts agreed, it appears that plaintiffs’ deed w7as never executed by a delivery to Ward & Co. as agents for Barnard, but that they held it as agents for plaintiffs until certain negotiations with Barnard should be concluded. Nor did Ward & Co. at any time hold the fund ($271) as agents for plaintiffs. On the contrary, the execution of the deed by plaintiffs (which would include a delivery to Ward & Co. as agents of Barnard) was a condition precedent to the payment of the money to the plaintiffs-Till that was done, the money in Ward & Co’s hands remained the property of Barnard. He had the right to recall it, and, if lost, it was his loss and not the plaintiffs’. While matters were in this state, the assignment of Ward & Co. was made to defendant as trustee. After the assignment, Barnard assented to changes in the deed, hut plaintiffs have not made them and the deed has not been delivered to Barnard.
The judgment of the Court, that under these circumstances the plaintiffs have no cláim upon the fund in the hands of the defendant, the assignee of Ward & Co., was correct. As Barnard is not a party to this action, so much *407of the judgment as adjudicates upon his right or interest in the fund is erroneous.
This is not an action by the trustee against claimants to the fund asking a construction of the rights of the several parties thereto which would justify the costs of the pro-ceding being taxed against the fund. It is a simple action at law by plaintiffs for recovery of a sum of money when the condition precedent, which would entitle them to it — the execution and delivery of the deed1 — has not been complied with. Had the action, in this state of facts, been brought against Ward & Co., the plaintiffs could not have recovered either money or costs. Their condition is made no better by the fact that Ward & Co. are represented by an assignee.
The judgment below should have been entered simply against plaintiffs for costs, and without any adjudication upon the rights of Barnard in the fund. Let it be so modified. Modified and affirmed.