
    Motor Sales Company vs. National Fire Insurance Company.
    York County.
    Decided October 27, 1924.
   On report. Action of assumpsit to recover the value of an automobile insured against theft by the defendant and alleged to have been stolen from one Cadorette who had the car in his possession in Biddeford for, the purpose of sale ' on commission.

The initial fact to be proven is that of theft, the defendant claiming that there was no actual theft but that the car was taken out of the State and after the lapse of a convenient time was also returned to Dayton in this State by certain parties with the connivance of those representing the plaintiff corporation. On this issue the burden was on the plaintiff.

It is unnecessary to analyze and discuss the evidence in detail. Such discussion would afford no profit to the profession and no satisfaction to the parties.

Louis B. Lauzier, Willard & Ford, and Emery & Waterhouse, for plaintiff.

F. R. & M. Chesley, Warner, Stackpole & Bradlee, Marvin C. Taylor and Charles G. Lewis, for defendant.

It is sufficient to say that considering the consistency of the undisputed facts with the claim of the defendant, the lack of motive on the part of Cadorette to be solely responsible for the taking, the financial straits of the plaintiff corporation, the direct testimony of Cadorette implicating the plaintiff’s agent with the fake theft, the uncorroborated denial of the agent, the failure of the party Whitehead who was concerned with the taking to testify in the agent’s behalf or in contradiction of Cadorette though present at the trial, the conduct of the plaintiff’s agents after the alleged theft, and the general atmosphere surrounding the entire transaction as created by the circumstances, the plaintiff has failed to convince the court that the car was in fact stolen. The entry must therefore be, Judgment for defendant.  