or expense actually sustained and paid in money by the assured in satisfaction of a judgment after actual trial of the issue, nor unless such action be brought within one year after such payment."

There was introduced in evidence an agreement, of date June 30, 1915, between Tulare County Power Company and Mt. Whitney Power & Electric Company, supplemented by an agreement of August 2, 1915, whereby said Mt. Whitney Company purchased the properties of the Tulare County Power Company, and wherein it was recited that the judg ment in the Bergen case was a lien upon said properties and that the balance due the Tulare Company under said agreement of sale should not be paid by the Mt. Whitney Company until said judgment and lien had been fully satisfied of record.

It appeared that the Mt. Whitney Company paid fourteen thousand dollars of the Bergen judgment and the Tulare Company paid $1,036.10 thereof. It is claimed by appellant that this payment by the latter company does not constitute the payment provided in said section 3 of the policy.

Appellant cites Philadelphia Pickling Co. v. Maryland Casualty Co., 89 N. J. L. 330, [98 Atl. 433]. There a policy of insurance was issued by the defendant to "Philadelphia Pickling Co.," which was in reality Sallie Wittenberg, she having adopted that trade name. One Chambers, an employee, was injured in the assured's factory and brought suit and recovered judgment. After the verdict and before final judgment, Sallie Wittenberg transferred her business to the plaintiff, Philadelphia Pickling Co., a corporation, which took over the assets and assumed the liabilities of the trade name, including the Chambers claim. The policy was attempted to be passed by a parol transfer and delivery, but at the time of the incorporation of the plaintiff the policy had expired. The corporation paid the Chambers judgment and brought the action against the surety company to recover the money paid. Said the court: "Clearly, the appellant cannot recover as the assured under the policy. The difficulty, however, is this: Sallie Wittenberg never suffered any loss. She never paid any money. The money that was paid was paid by the present appellant, the Philadelphia Pickling Company, Incorporated. . . . There was no loss under the

policy. While it is true Sallie Wittenberg had assigned her cause of action, she could not assign any loss, for she had already had that loss made good to her by the Philadelphia Pickling Company, not by way of indemnity, but as a part of the purchase price of the property.

The facts in the case at bar differ from those in the above case in the following particulars: The assured here did suffer loss; there was loss under the policy; the assured did not assign its cause of action, but itself prosecuted the suit. The check of the Mt. Whitney Company for fourteen thousand dollars was drawn to the order of plaintiff and bore the endorsement that it was in full satisfaction of the Bergen lien. This check, together with one of the plaintiff for $1,036.10, was delivered to the county clerk and by him to Mrs. Bergen. It is said, in J. Frank & Co. v. New Amsterdam C. Co., supra: "It is therefore immaterial to the insurance carrier how or when that corporation [plaintiff] obtained the money or the credit which enabled it to pay Cousins [judgment creditor] the amount due." And it was said, in Rodgers v. Pacific Coast Casualty Co., supra, that when the judgment against the assured became final, the liability of the insurer became fixed, and it would have been competent for the assured to assign her claim against the insurer to the judgment creditor in satisfaction of the judgment.

We can see no merit in the point under discussion.

8. Appellant contends that the court erred in allowing interest from the date of the entry of the Bergen judgment and in allowing plaintiff's attorneys' fees.

This contention must be sustained. [7] A contract of indemnity is to be strictly construed, and the contract of indemnity measures the rights of the parties thereto, and consequently, the liability of the indemnitor. The defendant here agreed to indemnify the plaintiff "against loss or expense arising or resulting from claims upon the assured for damages," etc., to the extent of five thousand dollars in the case of bodily injuries or death to one person, etc. In addition, the indemnitor agreed that, in the event of any suit brought against the assured to enforce a claim for damages covered by the policy, it "will defend such suit, whether groundless or not, in the name and on behalf of the insured," and that "the expenses incurred by the company in defending such suit, including costs, if any, taxed against the assured,

will be borne by the company whether the judgment is for or against the assured."

[8] It is claimed by the respondent that interest upon the judgment is a part of the costs or expenses of the litigation. But this cannot be so. The "costs" referred to in the contract of indemnity refer to the costs of defending the suit for the recovery of damages against the assured, and certainly it cannot reasonably be said that interest on the judgment recovered against the assured is any part of the cost necessarily incurred or to be incurred in defending the action in which said judgment was obtained. As stated, the assured is bound by the limitation as to reimbursement prescribed by the contract of indemnity, and obviously the allowance of interest on the judgment from the date of its entry and pending the appeal therefrom would result in extending the liability of the indemnitor beyond the amount to which the contract of indemnity expressly limits such liability. This conclusion as to interest is supported by the cases generally.

In Maryland Casualty Co. v. Omaha Electric L. & P. Co., 157 Fed. 514, 519, [85 C. C. A. 106], the United States circuit court of appeals of the eighth district, considering the precise point under discussion in an action on bond such as the one involved herein, said: "Is the interest accrued after the original judgment was rendered, and pending the appeal to the supreme court, an expense or outlay incident to defending the suit, and when paid by the assured does it constitute a loss within the meaning of the policy? In answering this question we must not forget that the matter resides in the domain of contract, and that the contract measures the rights of the parties. They agreed that defendant's limit of liability should be five thousand dollars, except as it might be increased by failure on its part to pay the costs of making the defense. The interest, in our opinion, is not a part of such cost. It may be remotely related to the delay occasioned by making a defense, in that if no appeal had been prosecuted and no supersedeas secured, the judg ment as an indirect result would probably have been paid and no interest would have accrued. But this is a forced and unnatural view to take. An agreement to pay the cost of making a defense in the common and well-understood acceptance of the term fairly and reasonably contemplates the attorney's fees, court costs, stenographer's fees, and other

expenditures, necessary and directly required to present the defense, and does not include the collateral and indirect results of doing so." (See, also, Pacific Coast Casualty Co. v. General Bonding & Casualty Ins. Co., 240 Fed. 36, [153 C. C. A. 72, 77]; Davison v. Maryland Casualty Co., 197 Mass. 167, [83 N. E. 407]; Munro v. Maryland Casualty Co., 48 Misc. Rep. 183, [96 N. Y. Supp. 705]; National & Providence Worsted Mills v. Frankfort Marine & Plate Glass Ins. Co., 28 R. I. 126, [66 Atl. 58]; Stephens v. Pennsylvania Casualty Co., 135 Mich. 189, [3 Ann. Cas. 478, 97 N. W. 686].)

[9] The sum of the rule as to interest in such cases is this: That an assured who pays a judgment for the full amount limited in a liability policy indemnifying against actual loss, or a judgment for a smaller amount than such limited sum, can recover the sum with interest only from the time of such payment, but that interest accruing on the judgment pending an appeal therefrom is not an expense of defending the action. The case of Saratoga Trap Rock Co. v. Standard Accident Ins. Co., 143 App. Div. 852, [128 N. Y. Supp. 822], sets forth and elaborately examines the reasons for the disallowance of interest upon a judgment pending an appeal therefrom or before the judgment has become final (which occurs only when the judgment has been affirmed by the appellate court) in a case, like the one involved herein, in which a security company has bound itself to indemnify the judgment debtor against loss by reason of such judgment. The case is an instructive one on the proposition, but it is not necessary to do more than refer to it herein.

Counsel for respondent declare that interest ought to be allowed upon the judgment for the reason that the defendant, by exercising its right of appeal in the Bergen case, delayed the payment of the judgment and thus permitted the interest to accumulate thereon. A similar position was taken in Maryland Casualty Co. v. Omaha Electric L. & P. Co., 157 Fed. 514, [85 C. C. A. 106], and was disposed of by the court in said case as follows: "The argument of plaintiff's counsel that the defendant, by exercising its right of appeal, and by superseding the execution of the judgment pending that appeal, caused the accumulation of interest in question, and thereby created an additional charge against the plaintiff for which it should be held responsible as a loss to the plaintiff, is more specious than sound. The fallacy rests

in a failure to recognize the advantage which the appeal gave the plaintiff. By reason of it plaintiff was permitted to retain and use the five thousand dollars, which otherwise would have been paid out by it. The value of the use is equal to the accrued interest, that being only a consideration paid for the use of money or for forbearance in demanding it when due. Accordingly, the assured lost nothing by the delay occasioned by the appeal or by paying the interest which accumulated pending the appeal. The assured stood after paying the interest exactly as it would have stood if it had paid the judgment of five thousand dollars on January 3, 1902, when originally rendered. Nothing was lost by the appeal, as the interest ultimately paid was neutralized by the use and enjoyment of the money before that time."

The judgment in the Bergen case was rendered and entered on the twenty-third day of May, 1914, and was paid by the plaintiff herein on February 1, 1917. It follows that interest on the judgment between those dates is not recoverable by plaintiff.

[10] The attorneys' fee of $250, awarded by the judgment to plaintiff's attorneys, should not be allowed. The fact is that the Surety Company notified plaintiff that it would defend the Bergen action and did defend it, and the participation therein by plaintiff's attorneys was by defendant's permission and was not required by the terms of the policy. Indeed, the evidence clearly enough shows that the part taken in said action by the attorneys for the plaintiff was wholly voluntary and gratuitous on their part. Moreover, in a letter of January 17, 1914, to Feemster & Walker, attorneys of the plaintiff, Mr. Cooley, one of defendant's attorneys, wrote that the expense of plaintiff's attorneys was "to be borne by the assured."

[11] 9. It is lastly contended that the court erred in denying defendants' motion for a change of venue.

The affidavits upon which the motion was made showed that defendant was a resident of and had its principal place of business in San Francisco; that the insurance policy was made and countersigned in San Francisco and was to be performed there; that it was customary amongst insurance companies to make payments to the persons insured at the home office, or principal office, of such companies.