¶1(dissenting in part). I agree with the affirmance of the judgment against Elton Risley on the complaint, but I disagree as to the disposition of Elton Risley’s cross-claims.
¶2The cross-complaint as reiterated in the pretrial order charged Warner Lindsay, Jr., with breach of trust; charged Laura O. Lindsay, Alphonse W. Kelley and the individual plaintiffs (as cross-claim defendants) with malicious interference, i. e., conspiracy with and inducement of Warner Lindsay to breach his trust; and charged all the cross-claim defendants with fraud in inducing Elton Risley to part with his Hill Dredging Company stock.
¶3The trial court found that Warner Lindsay, Jr., was guilty of no breach of trust. In this respect I am in accord with the views expressed by Mr. Justice Beennaf in his dissenting opinion filed this day.
¶4Alphonse W. Kelley was on the proofs an innocent party having a bona fide aim to purchase the Hill Dredging Company stock from Elton Risley. Therefore I agree with the trial court’s disposition of the cross-claim against Kelley.
¶5The evidence supports the cross-claim as to the fact of malicious interference with the negotiations between Elton *543Risley and Alphonse W. Kelley; and it supports the cross-claim as to the fact of the inducement of Warner Lindsay’s breach of trust. Nevertheless, these were but steps in the scheme to defraud Elton Risley. It seems to me, therefore, that the burden was upon Elton Risley to prove not only the fraud but participation in the fraud by the cross-claim defendants. The applicable rule of law is that fraud must be demonstrated clearly and convincingly.
¶6The evidence clearly and convincingly shows the inception, formulation and effectuation of the scheme to induce Elton Risley to part with his Hill Dredging Company stock to his detriment, and the participation of Carl E. Risley, Sarah J. Risley, Laura O. Lindsay and Warner Lindsay, Jr., therein. However the evidence fails to meet this test as to Harry A. Kaupp, E. Bertram Wright and Helen M. Wright.
¶7Therefore I would: affirm the judgment in favor of the plaintiffs on their complaint against Elton Risley; affirm the judgment of dismissal of the cross-complaint as against Alphonse W. Kelley, Harry A. Kaupp, E. Bertram Wright and Helen M. Wright; and reverse the judgment of dismissal of the cross-complaint, and direct the trial court to enter judgment declaring liability, as to cross-claim defendants Carl E. Risley, Sarah J. Risley, Warner Lindsay, Jr., and Laura O. Lindsay, and remand the cause to the trial court for determination of the damages and incidental relief to which the cross-claim plaintiff, Elton Risley, may be entitled to recover from these four cross-claim defendants.