here contains no other evidence than that of the report of the referee-and we are, therefore, authorized to assume and, indeed, presume, that the testimony taken before and heard by the court prior to the making of the order of reference was sufficient to justify the court in concluding that an accounting was necessary to a just adjudication of the rights of the parties and that, therefore, it was proper and necessary to order the account to be referred to a referee for examination and a report by that officer of the result of such examination.

But, after all, if it be conceded that error was committed by the trial court in ordering a reference of the account before expressly finding and decreeing that the interveners were entitled to an accounting, such error involved a mere irregularity in procedure from which the appellants could not have suffered any prejudice. As above stated, the order of reference amounted substantially to a finding that, justly to decide and determine the rights of the parties, an accounting and for that purpose an examination of the account would be necessary; so it follows that in any event an examination of the account and a decision thereon would be required. Under these circumstances, the appellants cannot show or justly claim that they were in any way prejudiced by the action of the court in prematurely ordering a reference, assuming, for present purposes only, that such order was, according to the fair import of the statute, prematurely made. As to the report of the referee itself, it was subject to objection by appellants when the matter of its confirmation came up before the court. Considering, therefore, the error, if error it be, involved in the act of making the order here attacked with reference to and in view of the whole record before us, we thus find that there is no ground justifying the conclusion that a miscarriage of justice resulted from the error, and there is, therefore, no authority in this court to order a reversal for such error. (Const., art. VI, sec. 42.)

[3] 2. It is next contended that there is no evidence to support a judgment against the appellants for any sum of money. This contention is based upon the fact that, while the referee found and reported the quantity of oil coming from the defendant, El Dora Oil Company, which had gone into the hands of appellants, Shrader, and those associated

with him, and the times at which they received the oil, and also the market value of the oil at the time it was received by said appellants, the referee did not find and report upon the proposition whether said Shrader and his associates received in money the market price for said oil at the place of production. The reply to this proposition is that the court found upon what we are required to presume, under the state of the record here, was sufficient evidence, that the contract whereby the El Dora Oil Company sold to Shrader, Campbell, and Jackson all the oil produced from the property leased by said company at the rate of twentyfive cents per barrel was fraudulently obtained by said Shrader et als., and with the purpose and intent of cheating and defrauding the stockholders of said company. It is further found that Shrader and his associates, subsequently to the execution of said contract, sold a large quantity of the oil so purchased from the El Dora Company. It is thus clear that, having wrongfully taken control of and sold the oil of the company, the appellants thereby became, as to said oil, involuntary trustees of the other stockholders and were, in analogy to the case of a conversion, chargeable with the market price of the oil at the time they sold the same. [4] But it is further contended that the evidence is insufficient to support a judgment for any money against the appellants for the reason that there is no finding by the referee with respect to any offsets which they might have had against the money so received by them. The answer to this contention is that, if the appellants had any expenditures or claims which they could have legiti mately set up in abatement of the amount for which the referee found that they had sold the oil, the burden, upon the accounting, was upon them to prove such expenditures or credits. (Fox v. Hall, 164 Cal. 287, 291, [128 Pac. 749].) This rule follows from the proposition that a party claiming offsets to a claim against him is supposed to have full and complete information as to any offsets or credits he may be entitled to upon such an accounting, while, perhaps, the adversary party is without any knowledge whatever of such offsets. In this case it is manifest, from the situation as it is disclosed by the record, that the matter of offsets, if any existed, was one wholly within the knowledge of the appellants, and that the interveners

were entirely ignorant thereof. The report of the referee shows that, although the appellants were duly notified on all occasions of the place and times of the hearing of the account, that at no time made an appearance before the referee or at the hearings, and in no way aided the referee in his work of investigating and making a report on the account. Thus, it is obvious that, if they could have shown offsets, and desired to avail themselves of the benefit thereof, it was their duty to have appeared at the investigations by the referee and presented such offsets. Not having done so, it does not now lie in their mouths to complain of a failure of the referee to find as to that matter, or of any disadvantage they may have suffered from such failure.

3. It is lastly contended that the judgment, in so far as it decrees null and void for want of a consideration the trust deeds and the chattel mortgage mentioned in the complaint in intervention, is not supported by the findings. An examination of the findings as a whole will show, as thus we have been convinced, that the point is without merit.

The court found (finding 3) that the trust deed executed and delivered to one M. S. Platz by the El Dora Oil Company, in pursuance of a resolution passed on the twentyninth day of February, 1912, by the said company's board of directors, of which board the defendant, Shrader, was then a member, was so executed and delivered for the purpose only of securing said Shrader for any indebtedness then due or that might become due and owing to him from said company; that contemporaneously with the execution and delivery of said deed, promissory notes amounting in the aggregate to the sum of thirty-five thousand dollars were executed by the El Dora Company to and in favor of said Shrader, and that said deed of trust purported on its face to be security for the payment of said notes; that said notes did not, at that time, represent an existing indebtedness due from said company to said Shrader in the aggregate sum thereof, and that said notes and said deed of trust were intended as security for the repayment to said Shrader "of what indebtedness there might then be due said defendant, John Shrader, or that might in the future become so due and owing." The court also found that, after the abovementioned transaction, in pursuance of a resolution adopted by its board of directors, the El Dora Company, through

its president, one E. S. Good, and its secretary, the defendant Shrader executed a trust deed to one McGrath to secure repayment of a "pretended indebtedness of fifty thousand dollars" due from said company to the defendants Campbell, Jackson, and Shrader, and at the same time the said company, under the authority of the resolution referred to, and through said Good and said Shrader, president and secretary, respectively, of its board of directors, executed to and in favor of said Campbell, Jackson, and Shrader its promissory notes aggregating the sum of fifty thousand dollars, to repay which the said deed of trust was given. The court found that there was no consideration whatever for said last-mentioned deed of trust or for the promissory notes the payment of which said deed was given to secure. The court then found, by finding 23, as follows:

"That the defendants John Shrader, Henry M. Jackson, and J. L. Campbell, and Ohio Construction Company, have received from the sale or disposition of oil produced from the property of defendant El Dora Oil Company, up to December 31, 1913, money or credits to the extent and sum of $94,188.85, for which said defendants have made no accounting and against which said defendants have no claim, credit, or offset, except in the sum of $7,076.24."

Thus this situation is presented by the findings above considered: 1. That, as to the trust deed and the promissory notes representing the purported thirty-five thousand dollars indebtedness, the court finds that that transaction or the notes did not represent an existing indebtedness, but any indebtedness to accrue only in the future. As to this finding we may here pause to observe that there is no express finding that a "future indebtedness" did not accrue before the commencement of this action against the company in favor of Shrader, and that, if taken alone, or without reference to finding 23, said finding 3 would not be sufficient to support the judgment as to that particular transaction; 2. That the court finds that there was no consideration whatever to support the transaction involving the giving of the notes for the aggregate sum of fifty thousand dollars and the trust deed executed for the purpose of securing payment of said notes; 3. That, instead of the El Dora Company being indebted to John Shrader in any sum whatever, John Shrader and his associates, Campbell, Jack

son, and the Ohio Construction Company, under which name the said three appellants, as copartners, conducted and carried on business, were indebted to the El Dora Oil Company in the sum of $94,188.85, less a credit of $7,076.24, and the interest on said indebtedness up to December 31, 1913, bringing the total indebtedness at the time of judgment up to the sum of $105,406.25.

We must assume that if there was evidence showing that anything was due John Shrader and his associates, or either of them, from the El Dora Company by reason of any of the transactions referred to in the findings above considered, the court would have made a finding thereon and due and proper allowance of the amount as a credit or offset against the amount of money found to have come into their hands from the sale of the company's oil. Indeed, on the record before us, the presumption is that all the findings derive sufficient support from the evidence adduced at the trial, and, considering the findings by the light of each other, or as a whole, they amply support the conclusion of law by the court that the thirty-five thousand dollar transaction, involving the execution of the promissory notes aggregating that sum by the El Dora Company to Shrader, and the deed of trust and the chattel mortgage given as security for said notes, "should be decreed to be null and void and of no effect."

It follows, of course, that the judgment, in so far as it decrees said notes, trust deed, and mortgage null and void, is buttressed by sufficiently supported findings and conclusions of law.

There are no other points presented here for our consideration.

The judgment appealed from is affirmed.

Ellison, P. J., pro tem., and Burnett, J., concurred.