larger tract of which they were a part, upon which he had made one payment, and was to obtain a deed only upon full payment; that he never made any other payment, but on October 30, 1888, conveyed all his right, title, and interest in said premises to Lucius Dennison, who afterwards-but at what date does not appear, except that it was prior to July 8, 1890-procured title to the tract of which these lots were a part; that between December, 1887, and the last of May, 1889, the plaintiff obtained from G. L. Dennison $750 as loans, to be secured on said lots; that on July 8, 1890, plaintiff tendered to defendant G. L. Dennison a good and sufficient deed of conveyance of the house and lot, and demanded of Dennison payment of $3,250, being the agreed value of the property, less $750, the amount of said loans. Dennison refused to make such payment, and at the same time tendered to plaintiff a deed of conveyance of said four lots, executed by Lucius Dennison, but which deed the plaintiff refused to accept, the grantor therein being a stranger to the contract or agreement between plaintiff and G. L. Dennison. It was further found that on May 6, 1890, a judgment was rendered in the superior court of Los Angeles county against G. L. Dennison for $20; that on September 25, 1890, one Marriner obtained a money judgment in said court against said G. L. Dennison for $2,500; that on December 28, 1888, F. K. and O. M. Harriman foreclosed in said court a certain mortgage against said G. L. Dennison, and on March 29, 1889, a deficiency judgment therein was docketed against said Dennison for $2,174.55; that on September 27, 1890, in an action brought by said Harrimans in said court against said G. L. Dennison and Lucius Dennison, a decree was entered adjudging the said conveyance so made by said G. L. . Dennison to said Lucius Dennison of said tract embracing said four lots to be fraudu lent as to creditors, and subjecting the same to the lien of said deficiency judgment. Lucius Dennison, the father, and Robert Dennison, the brother, of G. L., were occupants of the demanded premises with G. L., and were made defendants. Respondent contends that he was not bound to accept a conveyance of the four lets from a stranger to the contract; that G. L. Dennison, by the conveyance of the lots in question to his father, put it out of his power to fulfill his contract with the plaintiff; that such conveyance was made without his consent; that under section 1457 of the Civil Code "the burden of an obligation may be transferred with the consent of the party entitled to its benefits, but not otherwise ** *" that by section 1731, Id., "an agreement to sell real property binds the seller to execute a conveyance that, unless it was part of the agreement that it should bind the assigns of the parties, it could not bind them, and was merely a personal contract which could not pass to their In assigns except by mutual agreement. support of this contention respondent cites La Rue v. Groezinger, 84 Cal. 281, 24 Pac. 72. That case, however, clearly holds the general rule to be that contracts are assignable unless the contract provides otherwise, though the nature of some contracts may show that they cannot be assigned, though there is no language showing such intention, instances of which are stated in that case at page 285, 84 Cal., and page 72, 24 Pac. Of course, Dennison could not free himself from the burden or obligation of making a conveyance of these lots to the plaintiff without the plaintiff's consent, though either party could assign to another any benefit he was entitled to under the contract; that is, the plaintiff could assign to another his right to receive a convey. ance of the four lots, and the defendant could assign his right to receive a conveyance of plaintiff's house and lot. The burden or obligation of each to make the conveyance may, however, be transferred or performed by another only with the consent of the party who is to receive such performance or conveyance. The reason therefor can be illustrated by this case. At the time the exchange of property was agreed upon, G. L. Dennison did not have the legal title to these lots. He had contracted for their purchase, and was to receive a conveyance upon making full payment therefor. Before obtaining title, he conveyed them, with other property, to his father, and thereafter the payments were completed, and the property was conveyed to his father. A deficiency judgment was afterwards docketed against G. L., and a suit was commenced against him and his father to cancel or set aside said conveyance as fraudulent and void as against the creditors of G. L., and a decree was granted declaring such conveyance void as against said creditors. The implied covenants in a grant, bargain, and sale deed from the father to the plaintiff would only reach to incumbrances done, made, or suffered by the father, the grantor therein, and would not protect the plaintiff against incumbrances or liens suffered by G. L. Dennison, and the plaintiff was entitled to this implied covenant. Civ. Code, § 1113. No time having been fixed for the mutual conveyances to be made, the conveyance of these lots by G. L. Dennison to his father was not necessarily an abandonment of his contract with the plaintiff. He offered to prove that he had an agreement with his grantee that he, Lucius Dennison, would carry out the agreement with the plaintiff, and convey the four lots to the plaintiff. The plaintiff objected, and the objection was sustained. It does not appear that this agreement was communicated to the plaintiff, or that he assented thereto in any manner. The evidence was properly excluded, as was also the deed from Lucius Dennison to the plaintiff, upon the ground hereinbefore stated. Subsequently the defendant G. L. Dennison, during the trial, on the 7th of May, 1891, wrote upon said deed and executed and acknowledged the following: "I, G. L. Dennison, of said county and state, do hereby go in with the grantor herein in the written deed to A. W. Royal, of said county and state, and do by these presents grant, bargain, and sell to A. W. Royal all my right, title, and interest in and to the property described in the within deed, in consideration of exchange for house and lot No. 215 Court street, Los Angeles city and county." Whether this instrument was effectual for the purpose of binding G. L. Dennison by the implied covenants of a grant, bargain, and sale deed, it is not necessary to inquire, since, on the 27th of September preceding, the conveyance made by him to his father was adjudged fraudulent as against the plaintiffs therein, and the property was thereby made subject to the lien of the deficiency judgment hereinbefore noted, and which is not shown to have been satisfied. Whether the court erred in excluding the deed with the additional instrument executed by G. L. Dennison, at the stage of the case at which it was offered, need not be decided, inasmuch as the decree above referred to being afterwards introduced rendered the exclusion, if it was error, harmless. Appellants contend, however, that plaintiff's tender of a conveyance was not sufficient to put Dennison in default, because the tender was made upon the condition that he pay plaintff $3,250 in money; that under section 1494 of the Civil Code "an offer of performance must be free from any conditions which the creditor is not bound, on his part, to perform;" and that he was not bound to pay for the property in money. But Dennison was not at the time of the tender by plaintiff, nor, indeed, had he ever been, the owner of the legal title to these lots, and therefore could not have complied with a demand for a conveyance of them. Under such circumstances we think he cannot object to the form of the tender, or the condition attached to it, since he was not injured by the condition. His right to insist that the plaintiff should accept a conveyance of the lots was not affected by the fact that he did not have the legal title at the time he made the contract, nor by the fact that he afterwards conveyed his equitable title to his father, provided he had procured the legal title before he was required to perform his contract by a conveyance. This case does not come within the case of Burks v. Davies, 85 Cal. 110, 24 Pac. 613, where the defendant had no title to a part of the property, nor any contract for the purchase of it under which he could have compelled the owner to convey the title to him. The distinction between that case and the case at bar is clearly pointed out in Easton v. Montgomery, 90 Cal., at page 315, 27 Pac. 280, as well as by the remark of Mr. Justice Paterson in the former case, where it was said: "If, though he be not the absolute owner, it is in his power by the ordinary course of law or equity to make himself such owner, he will be permitted within a reasonable time to do so." Whether, if Dennison in this case had acquired the unincumbered legal title to these lots before the trial, he could have compelled a specific performance by the plaintiff, we need not consider, since the title was shown to have been subject to the judgment of Harriman, if not of others. It is contended that these judgment rolls were improperly admitted. We think not. It was competent for the plaintiff to show that the title was not free from incumbrances. This was certainly the case as to the Harriman judgment, and if the conveyance by G. L. to Lucius Dennison was fraudulent as to one creditor it was presumably so as to all; or, if that be not the case, since one was competent and material, and would have been entirely sufficient to justify the plaintiff in refusing to accept the title, the introduction of the others could not prejudice the defendants. The date of the commencement of the Harriman suit against G. L. and Lucius Dennison, as well as of the other actions, must have been shown by the judgment rolls which were put in evidence, but by a singular omission the date at which these several actions were commenced, and especially of the Harriman suit to set aside the conveyance, nowhere appears in the record, since the commencement of that action was a direct attack upon the title of Lucius Dennison to these lots. Every point made by appellant in his attack upon the findings has been sufficiently covered by what has been said. The findings are justified by the evidence, and support the judgment. We find no error in the record which would justify a reversal of the judgment or order appealed from, and advise that they be affirmed. FITZGERALD, J. The moving papers upon which the motion to dismiss the appeal herein is based show that the appellant has paid to the respondent the sum of $200 to be released from the judgment from which this appeal is taken, and that the respondent has accepted said sum, and in consideration thereof has released the appellant from all liability thereunder. The motion was resisted by the opposing affidavit of the attorney of record for the appellant, but, as there is nothing contained therein that is at all material to this proceeding, it is not necessary to be considered. As the controversy arising out of this action was terminated by the settlement agreed upon between the parties thereto, there is nothing for this court to decide. It therefore follows that the motion to dismiss the appeal should be granted. So ordered. We concur: BEATTY, C. J.; MCFARLAND, J.; HARRISON, J.; DE HAVEN, J.; VAN FLEET, J. (104 Cal. 257) LOS ANGELES COUNTY v. LOPEZ, Auditor. (No. 19,474.) (Supreme Court of California. Sept. 29, 1894.) BOARD OF SUPERVISORS-POWERS. The board of supervisors cannot create the office of license tax collector. El Dorado Co. v. Meiss, 34 Pac. 716, 100 Cal. 268, followed. Department 2. Appeal from superior court, Los Angeles county; Walter Van Dyke, Judge. Action by the county of Los Angeles against F. E. Lopez, auditor, etc. Judgment was rendered for plaintiff, and defendant appeals. Affirmed. James McLachlan and Spencer G. Millard, for appellant. H. C. Dillon, for respondent. PER CURIAM. The judgment appealed from in this case is affirmed on the authority of the case of El Dorado Co. v. Meiss, 100 Cal. 268, 34 Pac. 716, in which it was held that the board of supervisors had no authority to create the office of license tax collector, and in which the case of People v. Ferguson, 65 Cal. 288, 4 Pac. 4, was also expressly overruled on this point. (4 Cal. Unrep. 858) PEOPLE v. CONNELLY. (No. 21,272.) (Supreme Court of California. Oct. 4, 1894.) EMBEZZLEMENT-INSTRUCTIONS-DEFENSES. 1. On a trial for embezzlement, where no request is made to limit evidence of similar embezzlements by defendant to proof of criminal intent, a voluntary instruction that defendant is not on trial for embezzling any other sum than that charged in the information is not prejudicial because it fails to make such a limitation. 2. The fact that an appropriation of an employer's money was made without attempt at concealment is no defense to a charge of embezzlement. In bank. Appeal from superior court, city and county of San Francisco; J. M. Seawell, Judge. Patrick Connelly appeals from a conviction of embezzlement, and from an order denying a new trial. Affirmed. Lawler & Gray, for appellant. Atty. Gen. Hart, for the People. PER CURIAM. The defendant was convicted of the crime of embezzlement, and appeals from the judgment, and from an order denying his motion for a new trial. The information charges that defendant embezzled $89.78, the property of M. Goodwin, which he had received from Vincent Leguns as the agent and collector of said Goodwin. 1. On the trial, evidence was introduced on the part of the people, without objection, to prove that defendant had embezzled other sums of money which he had collected for Goodwin, amounting to more than $5,000. As to this the court was not asked by either party to instruct the jury, but, of its own motion, instructed as follows: "Now, with reference to the matters outside, the five or six thousand dollars that has been spoken of,-I charge you that the defendant here is not accused or on trial for embezzling any other sum than this money that was collected from Leguns; and, if you find that the defendant embezzled that money, why then you will find him guilty, and by your verdict you must state the amount." The verdict was that defendant was guilty of embezzling $78.43. It is admitted that evidence of the embezzlement of other sums was properly admitted for the purpose of showing criminal intent, as was held in the case of People v. Gray, 66 Cal. 271, 5 Pac. 240. Nor is there any objection on the ground that the court voluntarily instructed on that point. But it is contended that the court erred in that it did not add to the instruction given that the evidence of other like embezzlements could be considered only for the purpose of proving the fraudulent or criminal intent with which the money received from Leguns was converted. If the instruction is defective in this respect, it is so to the advantage of the defendant, for the reason that the jury may have understood that they were instructed not to consider the evidence as to other embezzlements for any purpose, and could not otherwise have understood the instruction to the prejudice of the defendant. It seems to have been intended for the benefit of defendant, and, so far as it went, surely was so. If the defendant desired any addition to the instruction, he should have asked it. 2. The venue was sufficiently proved. The evidence contained in the bill of exceptions tends to prove that the money was received and converted by the defendant in the city and county of San Francisco, and should be deemed sufficient. People v. Marks, 72 Cal. 46, 13 Pac. 149; People v. Leong Sing, 77 Cal. 117, 19 Pac. 254; People v. Carroll, 80 Cal. 154, 22 Pac. 129; People v. Tonielli, 81 Cal. 279, 22 Pac. 678. 3. It is claimed that defendant was working for one-half of the profits on the sales made by him, and not for a definite commission, and therefore was interested in the business as a partner, and there was some evidence to this effect. But Mr. Goodwin testified positively that: "He was not working on profits at all. He was working on commissions on the amount sold. I am positive of that. The percentage of sales which he got as commission was 17 per cent. In estimating the amount of his commission, I did not take the cost price of the goods. It did not make any difference what the goods cost. We allowed him his commission of just 17 per cent.” 4. It is further claimed that the undisputed testimony of defendant was that he was authorized to spend money at his discretion to build up the trade, but this is a mistake. He did not say he was authorized to spend money for that or any purpose. He simply said: "The money, if any, that I was short was spent for the benefit of the house, building up the trade. I collected the money from Leguns on that bill. Q. Did you ever account to Mr. Goodwin for the money you had spent building up the trade? A. Oh, yes; what I would be short. What I was short when I would turn in, -supposed to turn in,-I would say, 'Charge so much to my account.' Can't remember whether I told them to charge the Leguns money to my account, or whether I paid it in." 5. It is further contended that the money was appropriated by defendant openly, and without secrecy or concealment. While secrecy or concealment may be evidence tending to show a criminal intent, yet, if the evidence shows that the criminal acts constituting embezzlement were committed by the defendant, it is no defense that they were committed openly. The judgment and order are affirmed. (104 Cal. 369) CHURCHILL v. BAUMANN et al. (No. 18,164.) (Supreme Court of California. Oct. 4, 1894.) In bank. On rehearing. Judgment affirmed. Spencer & Raker and C. A. Raker, for appellant. Goodwin & Goodwin and D. W. Jenks, for respondents. PER CURIAM. Upon a reconsideration of the questions involved in this appeal, we are satisfied with the conclusion reached by de partment 1 in its opinion filed herein March 10, 1894 (36 Pac. 93), and for the reasons stated in that opinion the order appealed from must be affirmed. Order affirmed. BEATTY, C. J. I dissent. Under our practice, I think a plaintiff may couple an application for an injunction to restrain future trespass with an action for damages for past trespasses of the same character, and that, notwithstanding his prayer for equitable relief, he is entitled to a jury trial of the issues involved in his action for damages. (4 Cal. Unrep. 860) (No. 18,162.) Oct. 4, 1894.) SMITH et al. v. SMITH. (Supreme Court of California. VENUE IN CIVIL CASES HOW DETERMINED-LOCAL CAUSE OF ACTION. 1. The nature of a cause of action, so far as it determines the venue, must be ascertained from the complaint alone, without considering any amendment which plaintiff may intend to make. 2. A complaint asking that it be adjudged that certain deeds of land are mortgages, and that they have been paid, and that, if it be found that any part of the debt remains unpaid, plaintiffs be admitted to redeem, and that they be let into possession, states a local cause of action, which should be brought in the county in which the land lies. Commissioners' decision. Department 1. Appeal from superior court, Tuolumne county; John Hunt, Judge. Action by E. H. Smith and others against Cyrill C. Smith. From an order denying a change of venue, defendant appeals. Affirmed. J. C. Law (James H. Budd, of counsel), for appellant. J. C. Campbell and F. D. Nicol, for respondents. VANCLIEF, C. This is an appeal from an order denying defendant's motion to change the venue from Tuolumne county, where the action was commenced, to the county of Merced, where the defendant re sided at the time the action was commenced, to wit, July 20, 1892. A former action by the same plaintiffs against the same defendant for the same and additional relief, and founded on the same and an additional cause of action, was commenced in Tuolumne county on July 20, 1891, in which defendant's motion to change the venue of that action to the county of Merced was denied, and upon appeal from the order denying the motion this court reversed the order, and directed the court below to grant the change (Smith v. Smith, 88 Cal. 572, 26 Pac. 356); but before the change of venue was granted by the lower court the plaintiffs dismissed that action, and thereafter commenced the action in which was made the order from which the present appeal was taken. It is contended by appellant that substantially the same grounds for a change of venue appear to exist in this case as in the former, and that upon the authority of the decision of this court in the former case the order denying a change of venue in this case should be reversed. The substance of the complaint in the former action is stated in the opinion of the court on the appeal from the order in that action (88 Cal. 573, 26 Pac. 356), whereby it appears that that complaint stated both a local and a transitory cause of action,-a cause of action to compel the defendant to convey to plaintiffs certain lands situate partly in Tuolumne county and partly in the county of Merced, and a cause of action to compel the defendant to account for money and other personal property alleged to have been received by him as partnership property of a firm composed of himself and one D. G. Smith, deceased, under the latter of whom the plaintiffs claimed an interest in the partnership property by inheritance. It was held on that appeal that, inasmuch as the complaint stated a transitory as well as a local cause of action, the defendant was entitled to a change of venue to the county of Merced, in which he resided, the court saying: "The plaintiff cannot, by uniting in his complaint matters which form the subject of a personal action with matters which form the subject of a local action, compel the defendant to have both those matters tried in a county other than that in which he resides. It is only when real estate alone is the subject-matter of the action that the provisions of section 392, Code Civ. Proc., can be invoked against a defendant who resides in a county different from that in which the land is situated." The respondents claim that real estate alone is the subject-matter of this subsequent action, from the order in which this appeal was taken; that the facts constituting a personal or transitory cause of action in the complaint considered on the former appeal are entirely absent from the complaint involved in this appeal. The substance of the complaint in this action is that on July 29, 1876, D. G. Smith, under whom plaintiffs claim by inheritance, was the owner of several thousand acres of land, of the value of $200,000, situated partly in each of the counties of Tuolumne, Merced, and San Luis Obispo, and was then indebted to defendant in the sum of $31,000, and to other persons in the sum of $33,000; that for the sole purpose of securing the payment of such indebtedness he then conveyed all said lands by deeds ab solute on their face to the defendant, under a contemporaneous agreement with defendant that the deeds should be considered only mortgages; that defendant should take possession of the mortgaged property, and manage the same, and pay all the indebtedness to secure which the deeds were executed, and when all such indebtedness should be paid the defendant should reconvey to him (D. G. Smith) all said mortgaged real property; that all said deeds were made at the same time, and as one transaction; that no other consideration passed between the parties than said agreement; that D. G. Smith died intestate February 2, 1883, and all the debts of his estate, including the debts of decedent to defendant and others to secure which said deeds were executed, have been fully paid and discharged; that ever since the 29th day of July, 1876, the defendant has had, and still has, the exclusive possession of said mortgaged lands, and during all that time has received all the rents, issues, and profits thereof, and that no part thereof has been administered upon as the estate of D. G. Smith, deceased; that defendant did not reconvey to D. G. Smith said mortgaged property, nor any part thereof, and upon their demand has refused to convey to the plaintiffs the undivided five-sixths thereof, to which they are entitled, or to admit them to the possession as tenants in common with him; and that the value of said mortgaged property is $300,000. Allegations not pertinent to the question of venue, including those showing the heirship of the plaintiffs, are omitted. The prayer of the complaint is substantially that it be adjudged that said deeds are mortgages, and that they have been paid and satisfied; that plaintiffs are owners of five-sixths of the mortgaged land, and that they be let into possession as ten ants in common with defendant; that, should it be found that any part of the mortgage debts remain unpaid, plaintiffs be permitted "to redeem from the mortgages simultaneously with the execution of conveyances of said real property to them by defendant;" and that plaintiffs have such other and further relief as may be proper. By comparing this complaint with that in the former action it will be seen that all the facts of that complaint held to constitute a transitory cause of action have been omitted from this complaint, and this is admitted by counsel for appellant. But they claim that the affidavit of the defendant on which the motion was made shows that plaintiffs intend so to amend their complaint in this action that they may introduce proof of all the facts alleged in their former complaint. They say: "We do not claim that under the present form of the complaint in this action, without any amendment thereto, that plaintiffs could introduce such proofs." That affidavit, among other things, contains the following: "That the complaint in this ac tion was drawn and this action commenced in its present form with the intent of preventing a transfer of this action to Merced county, and with the purpose of litigating and determining in this action under said complaint or amendments thereto all questions and matters that might have been litigated under the former complaints in the dismissed actions aforesaid. And it is plaintiffs' purpose to have litigated and determined in this action under the allegations of the complaint herein, or an amendment |