dissenting.
Under applicable law as outlined in the Court’s opinion the decision of the district court should be affirmed. This case was tried. The district judge had the evidence before him first hand and was able to judge the credibility of the witnesses. The district judge recited the applicable law and determined that the facts before him established the elements of fraud as this Court has outlined them. Specifically the district judge found that Darns Ellis made a representation of fact relating to buying back the lot and not enforcing the penalty clause. Further, that representation was material, was false, and was relied upon by the Gillespies. Taking into account that the district judge recited the applicable law, it is clear that the determination of the district judge was that the representation was false at the time it was made. That is a reasonable inference from the evidence presented.
A reasonable interpretation of the evidence is that the Gillespies were induced into a transaction by a representation that Ellis did not intend to honor when made and did not honor when the time came to live up to his word.