Mawhinney

— The defendant made its policy of insurance in favor of the plaintiff’s assignor, by which it insured him to an amount not exceeding eight hundred dollars for the term of three months from June 2,1890, against loss or damage by fire to the following described property, “while located and contained as described herein, and not elsewhere, to wit:—■

The harvester was destroyed by fire June 10,1890, and in an action upon the policy the complaint alleged that its destruction occurred “while in transit from L Street in Fresno, the place where the same was at the time of said insurance, to the grain fields for use in connection with the harvest in said Fresno County.” This allegation was denied by the defendant, and was the issue upon which the cause was tried. At the close of *186 the plaintiff’s case the defendant moved for a nonsuit upon the ground that the evidence failed to sustain this allegation of the complaint. The court denied the motion, and the defendant declining to offer any evidence, judgment was rendered in favor of the plaintiff, from which and an order denying a new trial the defendant has appealed.

At the date of the policy the harvester was in a building on L…

dissenting.—I I dissent. The plaintiff testified that the harvesting season in Fresno County commenced about *188 the 10th of June; that the machine was sent to the blacksmith for repairs, which were nearly completed when it was burned. I. 1ST. Barrett testified that the object of taking the machine to the blacksmith shop was to repair it for work in the field; that a contract had been made for cutting grain, and that he had made arrangements to take the machine out" to the field on the eleventh day of June, or as soon as the necessary repairs were completed; that one contract had been made for harvesting before the machine left plaintiff’s place, and another contract after it reached the shop, but no work had been done with it that season.

Upon this showing I think the motion for a nonsuit was properly denied. The taking of the machine from the place where it was housed to the shop, and the work done upon it there were acts done “in connection with harvesting”—as much so as if the machine had already been in operation, and had been returned to the shop for repairs. The plaintiff when he took it out for repairs intended not to return it to the place where it had been stored, but…