(dissenting) :
It is conceded that the charge of fraud must be proved by clear and convincing evidence. Pace v. Parrish, 122 Utah 141, 247 P.2d 273. This court has repeatedly said that because the trial court is in an advantaged position to judge the credibility of witnesses, it will look with some indulgence upon its findings; and that in cases in equity, it will not overturn them on appeal unless the evidence clearly preponderates to the contrary. See Nokes v. Continental Min. & Mil., 6 Utah 2d 177, 308 P.2d 954.
The range we are concerned with, known as a Westinghouse “Spee.d-O-Light” Electronic Range, is a new departure from conventional methods of cooking with ordinary heat. The manufacturer’s brochure explains that the energy of high frequency radio waves is directed into the food, where it is therein converted into heat, so that the only heat generated is in the food, not in the utensils or the oven; and that the food is heated immediately uniformly through, thus cooking with great speed.
The plaintiffs’ (the Sohms) evidence is that the defendant represented the stove as usable for all general home purposes, (except only for cooking hotcakes) specifically, that it would: fry eggs, bake cakes and bread, cook cereals and can fruit; and that the cooking could be done in regular dishes, including Melmac (a plastic); whereas, the fact is that while this high-speed internal cooking by the intense hfeat created by transformed micro waves will indeed cook some foods with great speed, it is not suitable for general household cooking, particularly that none of the tasks just stated could be done satisfactorily on it. For example, they said that eggs would not fry, but that it had the effect of baking them so they were not palatable; that a similar undesirable effect resulted from attempting to fry meats; that various foods; which normally took a long time to cook,, such as bread or other baked items, could' not be cooked satisfactorily; and this was; also true of a number of vegetables andl other foods.
On examination by the court, Mr. Nickles himself admitted that the stove had its limitations.
“The Court: You do not get fried eggs out of the equipment?
“Nickles: No, sir.
“The Court: What else wouldn’t it do, besides fry eggs, cook pancakes and make taffy?
“Nickles: It wouldn’t cook foods, some foods, as we are accustomed to preparing them.”
Mrs. Sohm testified that at the time their depositions were taken she stated to Mr. Nickles:
*268“Since this is off the record * * * are you using your electronic range now?
“And that in response he laughed and said, ‘No, they are to be sold, not to be used.’ ”
So far as I am concerned I think it fortunate that we are not obliged to pass upon the merits or demerits of electronic cooking. Nor need we be concerned with the laws of physics relating to the transformation of radio waves into heat within foods, nor with their palatability as affected by it. Cooking is an art which has been fraught with complexities since ancient times and likely will continue to be so. I quite willingly leave its mysteries to others. But unless the plaintiffs’ evidence, upon which the trial court based its findings, is inherently incredible, we should allow him the privilege of believing it if he so desired.
The trial judge chose to believe the plaintiffs’ evidence: that the defendants made the representations stated above; and that they were false. He also appears to have accepted the plaintiffs’ explanations concerning the referral of the brother-in-law as a prospective purchaser; and as to why they waited until after they had had the stove for about a year and were sued for the purchase price before they interpleaded Mr. Nickles and set up the claim of fraud. As to the former: that it was right after they purchased the range and had gone on vacation, and before they really had a chance to use it, that they made the recommendation. As to the delay: they insisted that they did in fact complain to Mr. Nickles about the stove shortly after buying it; that they continued to do so; were referred to Westinghouse; that it was after a number of discussions and a further demonstration that they finally decided that the stove could not be made to work as represented and decided that they would not pay any more, which precipitated the bringing of this action.
It would be less than candid not to admit that a very plausible case can be made, as is done in the main opinion, for the proposition that fraud was not proved by clear and convincing evidence. However, the critical consideration in this case is as to how much deference should be allowed to the trial court in judging the credibility of the witnesses and finding the facts. It is important to keep in mind his prerogatives: to believe whom he chooses; and to disbelieve whom he chooses; and that it should rest largely within his province to determine whether the required standard of proof was met. See statement in Child v. Child, 8 Utah 2d 261, 232 P.2d 981. If this is done, I am not prepared to say that the evidence so clearly preponderates against the findings as to require upsetting the judgment.