ID. SALE OF GROWING CROPS-POSSESSION.-Growing crops are chattels not susceptible of manual delivery until harvested, and are not in the possession or under the control of the vendor within the meaning of section 3440 of the Civil Code requiring an immediate delivery and continued change of possession.

APPEAL from a judgment of the Superior Court of Fresno County. H. Z. Austin, Judge.

The facts are stated in the opinion of the court.

Short & Sutherland, and Carl E. Lindsay, for Appellant.

Barnard & Walters, and S. L. Strother, for Respondent.

KERRIGAN, J.-This action was brought by plaintiff for the alleged conversion of certain grain. The trial was had before a jury, and at the conclusion of the plaintiff's case a motion of nonsuit was made, and the court took the case from the jury and granted the motion, and this is an appeal from the judgment of nonsuit.

There are two points relied upon for a reversal, (1st) that no proper motion for a nonsuit was made; and (2d) that there was sufficient evidence to make out a prima facie case for the jury.

The first objection is based upon the assertion that no formal motion for nonsuit was ever made, and if made, the grounds of the motion were not specified.

The record clearly discloses the fact that not only was the motion made, but that it was based and granted upon the grounds that there had been no sufficient change of possession of the property under a sale thereof to satisfy the requirements of section 3440 of the Civil Code, and further, that it was not shown that there was ever any sale of the property. There is, therefore, no merit in either of the contentions contained in the first objection.

In support of the second objection it is argued that plaintiff presented substantial evidence tending to prove all the facts in issue constituting his case, and was therefore entitled to have the case go to the jury for a verdict on its merits.

There is no conflict as to the facts. It appeared in evidence that two parties, S. C. Robertson and Geo. R. Har

rison, were engaged in farming barley upon certain lands which they had leased, situated in Fresno County. In the month of June, 1916, and before the barley was harvested, they undertook to sell to plaintiff some 1,350 sacks of the crop, and agreed to deliver the same at San Joaquin, their nearest railroad station, as soon as the grain was harvested. The sale was made in two different lots. During the course of the harvest, but before completion thereof, it was taken by defendant into his possession as constable under a writ of attachment and finally sold by him under execution. It was admitted by defendant that plaintiff at the time of the attachment served upon him a duly verified claim of ownership, and it is not denied that the defendant refused to deliver the barley to plaintiff notwithstanding the claim so made, but, on the contrary, sold the same under execution. as above stated. The barley so sold constituted the entire interest of Robertson and Harrison in the crop, which amounted in all to about one thousand one hundred sacks. The testimony of the vendors, Robertson and Harrison, who sold the barley, and plaintiff's officers, who conducted the purchase, was positive and direct that an actual sale had been made. The terms of the contract itself show an actual sale unless the expression contained therein "as per your samp. No. 1 Fen" can be construed as having the effect to make the contract merely executory. Testimony was introduced to show that no sample of the barley was ever given, and from this evidence it might be inferred that the expression used was one of description only. Assuming, however, that the contract might be construed to be executory in character, the positive testimony of the parties to it was to the effect that the transaction was an absolute sale, and a conflict in the evidence was thus presented.

A motion for nonsuit should be denied where there is any evidence to sustain plaintiff's case. On such motion, if the evidence is fairly susceptible of two constructions, the court must take the view most favorable to the plaintiff. (Mitchell

v. Brown, 18 Cal. App. 117, [122 Pac. 426].)

This being so, the only remaining question to be discussed is as to the sufficiency of the transfer of the property to satisfy section 3440 of the Civil Code.

The property was not in existence when the sale of the grain was made, and, of course, was not and could not then

be in the possession of the transferrer. For like reasons there could be no actual or continued change of possession of this nonexistent property. (Fissel v. Monroe, 33 Cal. App. 756, [166 Pac. 607].)

Growing crops are chattels not susceptible of manual delivery until harvested, and are not "in the possession or under the control of the vendor" within the meaning of the statute requiring an immediate delivery and continued change of possession. (O'Brien v. Ballou, 116 Cal. 318, [48 Pac. 130].)

To so construe the statute would make it an imperative duty on the part of the grower to abandon the possession of his farm to the vendee at the time of the sale-a proceeding the statute certainly does not contemplate. (Davis v. McFar

lane, 37 Cal. 634, [99 Am. Dec. 340].)

In the state of the evidence we think it clear, in view of these authorities, that it was error to grant the defendant's motion for nonsuit. The judgment is therefore reversed.

Lennon, P. J., and Beasly, J., pro tem., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 4, 1918.

[Civ. No. 1555. Third Appellate District.-February 6, 1918.] ALFRED TRELOAR, Respondent, v. KEIL & HANNON (a Copartnership, etc.), et al., Appellants.

INSURANCE LAW-ACCIDENTAL INJURIES-INDEMNITY AGAINST LOSS AND EXPENSE FROM CLAIMS FOR DAMAGES-LIABILITY OF INSURANCE COMPANY WHEN ATTACHES.-Under a policy of insurance insuring "against loss and expense arising from claims upon the assured for damages on account of bodily injuries accidentally suffered or alleged to have been suffered during the period of the policy by any per son, and caused by the horses or vehicles in his service and use thereof, while in charge of the assured or his employees," and providing that "no action shall lie against this company for any loss or expense under this policy unless it shall be brought for loss or expense actually sustained and paid in consequence of a final judgment within ninety days from the date of said judgment and after trial of the issue," the liability of the indemnifying company

only attaches after loss or expense has been actually sustained and paid by the indemnitee.

ID.-NOTICE OF ACCIDENT-SETTLEMENT OR DEFENSE OF SUIT BY INSURER -LIABILITY NOT CHANGED.-A provision in such a policy that upon the occurrence of an accident the assured shall give the company immediate written notice, and the company shall, at its own expense, settle or "defend" the suit, does not change the liability of the insurer, since the word "defend" does not mean to successfully defend, but to contest the suit.

ID.-CONSTRUCTION OF CODE-LIABILITY NOT CHANGED.—The liability of an insurance company under such a policy is not intended to be changed by subdivision 2 of section 2778 of the Civil Code, providing upon an indemnity against claims or demands, or damages, or costs, expressly, or in other equivalent terms, the person indemnified is not entitled to recover without payment thereof.

CONTRACT CHANGE OF TERMS-POWER OF LEGISLATURE.-Where parties have entered into a lawful contract and clearly expressed their intention, the legislature cannot provide a different contract for them.

APPEAL from a judgment of the Superior Court of Sacramento County. Charles O. Busick, Judge.

The facts are stated in the opinion of the court.

Meredith, Landis & Chester, and Wachhorst & Wachhorts, for Appellants.

L. T. Hatfield, and Frank A. Prior, for Respondent.

BURNETT, J.-Plaintiff was injured in consequence of being struck by a vehicle driven by said E. P. Hannon, of the said firm. The action against said copartnership and the individual members thereof was based upon the claim of negligence in producing said accident and the evidence was sufficient to sustain the finding to that effect.

The claim as to the casualty company's liability grows out of the execution by said company of an indemnity insurance policy issued to said Keil & Hannon.

The said policy provides:

"Pacific Coast Casualty Company, of San Francisco, California, hereinafter called the Company

hereby insure

-Keil & Hannon

of the County of Sacramento State of California hereinafter called the Assured,

"Against loss and expense arising from claims upon the Assured for damages on account of bodily injuries accidentally suffered or alleged to have been suffered during the period of this policy by any person, and caused by the horses or vehicles in his service and use thereof, while in charge of the Assured, or his employees."

Said policy also provides that "no action shall lie against this company for any loss or expense under this policy unless it shall be brought for loss or expense actually sustained and paid in consequence of a final judgment within ninety days from the date of said judgment and after trial of the issue."

There is no contention that Keil & Hannon, or either of them, or anyone on their behalf, has paid any judgment or any money in consequence of the injury suffered by the plaintiff, nor is there any contention that any final judgment has been obtained in the action.

The complaint herein was brought against the defendants upon the theory that they are jointly and severally liable for the damages suffered, and the judgment, except as to the amount of damages, was in accordance with the prayer of the complaint.

From the portions of the policy which we have hereinabove quoted there can be no possible doubt that the parties thereto intended-and by apt language expressed their intentionthat the liability of the indemnifying company should attach only after loss or expense had been actually sustained and paid by the indemnitee.

We are at a loss to understand how such intention could be more accurately or plainly expressed. It is true that the language is "that no action shall lie against the company instead of "that no liability shall accrue to the company.' But it is too plain for argument that if no action will lie, no liability will be incurred.

It may be stated, also, that the portion of the said policy hereinabove first quoted by express language limits the insurance to "loss and expense" incurred by the assured. This language necessarily implies that the assured must have suffered loss and expense before he has any claim against the insurance company for indemnification. It is to be observed that the insurance is not against liability that may be incurred by the assured. If so, a very different case would be presented.

36 Cal. App.-11