Waugh, J.c.c. (temporarily assigned).
The parties to this action agreed that it should be determined by the court upon a stipulation of facts.
The action is a suit upon an insurance policy in which the defendant insured automobiles of the plaintiff, plaintiff being a car dealer. The pertinent provision of the policy; to wit, the property covered, reads as follows:
"The Policy covers automobiles consigned to or owned by the Insured and held for sale or used in the insured's business as an automobile dealer including repair service or as demonstrators but
excludes automobiles sold by the Insured under bailment lease, conditional sale, mortgage or other type of encumbrance. Automobiles consigned to or owned by the Insured which are subject to a trust agreement, bailment lease, conditional sale, mortgage or other type of encumbrance are not covered hereunder unless specifically so indicated below."
On October 9, 1954 the plaintiff negotiated with one Hoffbauer for the sale of a car which "was at that time owned free and clear by the plaintiff." "The terms of the agreement contemplated a down payment of $495.00 and payment of the balance by conditional sale."
The stipulation of facts sets forth that
"As the local office of the motor vehicle agency was closed (it being Saturday afternoon) there was no transfer of the certificate of ownership. Plaintiff agreed with Hoffbauer to accept $100.00 toward the down payment, permitted Hoffbauer to use the car over the weekend with plaintiff's dealer plates and arranged to meet 9:30 A.M. on October 11th, 1954 (Monday morning) at the Motor Vehicle Agency, at which time Hoffbauer was to pay the balance of the down payment, certificate of ownership was to be transferred and the registration and license plates issued to Hoffbauer. The Conditional Sales Contract signed by Hoffbauer was retained by plaintiff together with the certificate of ownership.
At 2:30 A.M. Sunday morning, October 10, 1954, the said automobile while driven by Hoffbauer overturned. Hoffbauer was killed and the automobile totally destroyed." Damages are stipulated at $900.00.
"Prior to the sale a finance company had agreed to finance the purchase by Hoffbauer and included in the cost of finance was collision insurance. * * * Said insurance never took effect as the final papers were never approved and no payments were made nor a policy issued, insuring the automobile in question."
The conditional sales contract, dated October 8, 1954 fully executed, completely filled out is attached to the stipulation of facts. Monthly payments were to commence November 8, 1954.
Plaintiff claims that the sale between it and Hoffbauer was never consummated, that it owned the car and that it was covered by the general policy with the defendant. Defendant urges ...