William Earl Gsell, and v. C. A. Dumbeck, and John N. Adams, III and Donald A. Rowberry, And

431 F.2d 1204

William Earl GSELL, Plaintiff and Appellee,
v.
C. A. DUMBECK, Defendant and Appellant.
John N. Adams, III and Donald A. Rowberry, Defendants and Appellees.

No. 25555.

United States Court of Appeals, Ninth Circuit.

Sept. 30, 1970.

Don Willner (argued) of Willner, Bennett & Leonard, Portland, Or., for appellant.

Thomas A. Huffman (argued) of Huffman & Zenger, Hillsboro, Or., Duane A. Bartsch of Smart & Bartsch, Portland, Or., for appellee.

Before WRIGHT and KILKENNY, Circuit Judges, and TAYLOR, District judge.1

PER CURIAM:

1

In a non-jury trial, an able and experienced trial judge found the defendants guilty of fraudulent misrepresentations and entered judgment against all defendants. Although defendant Adams was the ringleader, there is little doubt that appellant Dumbeck actively participated in the overall plan. Only Dumbeck appeals.

2

We affirm the judgment for the reasons stated in the opinion and findings of the trial judge. Gsell v. Adams, Dumbeck & Rowberry, 316 F. Supp. 394 (D.Or.1969). The proof supports the elements of actionable fraud as they are stated in Conzelmann v. Northwest Poultry & D. Prod. Co., 190 Or. 332, 350, 225 P.2d 757 (1950); Musgrave v. Lucas, 193 Or. 401, 410, 238 P.2d 780 (1951); and Libby Creek Logging, Inc. v. Johnson, 225 Or. 336, 358 P.2d 491 (1960). Moreover, we hold that the actions of the trial court in permitting the amendment of the pre-trial order to conform to the proof and in finding against the appellant on the issue of waiver are not clearly erroneous. The judgment must be affirmed.

3

It is so ordered.

1

The Honorable Fred M. Taylor, United States District Judge for the District of Idaho, sitting by designation