(dissenting):
I dissent for the following reasons.
In reversing the trial court’s determination that no sale has been made, it seems to me that the main opinion departs from fundamental and important rules of review. The findings of the trial court are entitled to a presumption of correctness.1 We should assume that it believed those aspects of the evidence which support its findings; 2 and its refusal to find that a sale had been completed should be sustained unless the evidence was sufficient to compel such a finding.3
Pivotal findings of fact made by the trial court, which find support in the evidence, are:
(1)That in connection with auctioning of the equipment in question the defendant announced that payment for any purchases made was a condition precedent to the consummation of any sale;
(2) that the plaintiffs failed to meet that condition of the auction and were instructed that no sale had been consummated until the purchase price of the equipment for which they had bid was paid in full; and
(3) that the plaintiffs were instructed they could not remove the equipment from its place of storage, but that they did so without permission of the defendant.
The main opinion states the proposition that a sale at auction is complete at “the fall of the hammer,” apparently placing some reliance on U.C.A.1953, Section 70A-2-328. I do not see that section as mandating any such conclusion. There is no magic to the “fall of a hammer.” Whatever else the Uniform Commercial Code may do to our law, it does not repeal the fundamental concept, honored since ancient times, that in order to bind parties to a contract there must be a meeting of their minds in agreement thereon.4 It is undoubtedly true as indicated in the cases cited, that under appropriate circumstances where the auctioneer offers, and the bidder accepts, the fall of the hammer may indicate such an agreement and the sale be consummated. But there are obviously numerous circumstances where that would not be the result, including where the auctioneer misinterpreted a gesture as a bid, and banged his hammer; or where a bidder proves to be totally irresponsible.
The trial court could justifiably find and conclude as it did that there was a previously announced condition: that there would be no sale until payment was made, and *230that the defendant’s indication of acceptance of the plaintiff’s bid constituted but an executory contract which required payment of the purchase price before the sale was complete.5 Consequently neither title to, nor the right of possession of, the equipment passed to plaintiff until he made such payment.6
Regarding the right to possession of the equipment, the main opinion states that the defendant’s agent, Parkes Shewmake, permitted the plaintiff to perform major repairs on the equipment and move it to Utah. It is significant that Mr. Shewmake had been authorized to act for the plaintiff Bullock in this transaction, and also for the defendant Bailey. However, there is no evidence that the latter authorized Shew-make to permit plaintiff to make the repairs and remove the equipment. The important and what should be controlling proposition is the trial court’s finding that the plaintiffs were instructed that they could not remove the equipment until it was paid for and that they disregarded that instruction.
Finally, it is urged on plaintiffs’ behalf that Shewmake’s acceptance of the check from the plaintiffs, after the equipment was removed, constitutes substantial evidence that there had been a sale and delivery. In support of the trial court’s refusal to find that there had been any such sale, the fact is that the check was inscribed on the back:
“Not to be presented to the bank for collection until adequate financing is completed.”
The check was not honored when the defendant attempted to cash it a few days later because no “adequate financing” had been obtained.
It is my opinion that the trial court’s refusal to find that the presentation of that valueless check fulfilled the condition of payment and resulted in a sale should be sustained.
I would affirm the judgment.
ELLETT, C. J., concurs in the views expressed in the dissenting opinion of CROCKETT, J.. C. G. Horman Co. v. Lloyd, 28 Utah 2d 112, 499 P.2d 124 (1972).
. Robertson v. Hutchinson, Utah, 560 P.2d 1110 (1977).
. Walker Bank & Trust Co., etc. v. First Security Corp., 9 Utah 2d 215, 341 P.2d 944 (1959).
. See Williston on Contracts, 3rd ed., Section 1, also suggests that “mutual assent” is more accurate, citing numerous cases.
. See Yellowstone Livestock Commission v. Dupuis, 133 Mont. 454, 325 P.2d 691 (1958).
. 7 Am.Jur.2d, Auctions and Auctioneers, Section 48.