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

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 Dumbeek actively participated in the overall plan. Only Dumbeek 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.  