William Earl Gsell, Plaintiff and Appellee, v. C. A. Dumbeck, Defendant and Appellant.john N. Adams, Iii and Donald A. Rowberry, Defendants and Appellees, 431 F.2d 1204 (9th Cir. 1970)

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.

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 pretrial 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.

It is so ordered.