ment was made showing that it was but an expression of the agent's opinion, and the subscriber, so far as appeared, being as well informed in regard to the facts as was the agent, Jackson v. Stockbridge (1867) 29 Tex. 394, 94 Am. Dec. 290;

- representations inducing owner of land to agree to widening of highway adjoining his premises, and to waive damages for the construction of railway tracks therein, as to the manner in which the track would be constructed and the cars operated, particularly with regard to the ballasting of the track and the speed with which trains would be run, and the fare that would be charged, Smith v. Waterloo, C. F. & N. R. Co. (1921) 191 Iowa, 668, 182 N. W. 890;

- implied representation on the part of a railroad company which had sold land to a fruit grower, who during a period of years had planted and developed an orchard, that the company would continue the line of road through the land and would not relocate it at another place, Bryan v. Louisville & N. R. Co. (1922) 292 Mo. 535, 23 A.L.R. 537, 238 S. W. 484;

-representations inducing subscription to railroad stock, made by commissioners appointed by the charter to receive and accept subscriptions, as to the proposed route of the road; the court basing its decision, however, on the ground that the commissioners had no power to locate the road, and the subscribers must be presumed to have known the provisions of the charter, Wight v. Shelby R. Co. (1855) 16 B. Mon. (Ky.) 4, 63 Am. Dec. 522.

In Bell v. Americus, P. & L. R. Co. (1886) 76 Ga. 754, an action on notes given for stock subscribed to a railroad company, it was held that the court properly refused to admit evidence showing that the parties obtaining the subscriptions to the stock represented that the road when built was to be a broad or standard gauge road and was to be equipped by a certain railroad company, whereas, when constructed and put into operation, it appeared that it was equipped by the corporation itself and was a narrow gauge road. But the decision is based, in part, at least, on the fact that it was not shown that the parties making the representations had authority to bind the company by such statements, or that they in fact attempted to do so; that

the notes given for the subscriptions contained no such conditions; and that it did not appear that the same were ever reported to the corporation or assented to by it.

And in East Line & R. River R. Co. v. Garrett (1879) 52 Tex. 133, in which a grantor of land for a railroad right of way claimed to recover damages for false and fraudulent representations of the railroad company that it would locate a depot on his land, the decision is based on the ground that it was not shown that the directors who made the representations had authority to bind the company by the declarations; nor was it shown that they were made in the performance of any act authorized by the company, so as to make them a part of the res gestæ. And it was held that, in view of this fact, evidence of declarations made by the directors to the effect above indicated should not have been admitted.

A representation made to induce one to subscribe for stock in a railway company, that another railroad corporation would do certain things to aid in its construction, was held not sufficient to avoid the subscription in Johnson v. Crawfordville, F. K. & Ft. W. R. Co. (1858) 11 Ind. 280; but the decision is based on the fact that the company as to which the representation was made had no power under its charter so to divert its funds, and the subscriber had no right to rely on such a representation.

In Parsons v. Detroit & M. R. Co. (1899) 122 Mich. 462, 81 N. W. 343, the evidence seems to show merely a belief on the part of the grantor of land for a railway right of way, that a depot would be erected and maintained near the land, rather than a promise to maintain the depot, and the court held that the deed must control, and that it would not be set aside on the ground that the company had moved the depot. It is said that no fraud or mistake was claimed.

It was held in Miller v. Hanover Junction & S. R. Co. (1878) 87 Pa. 95, 30 Am. Rep. 349, that a subscriber to railway stock was estopped from setting up a secret parol agreement between himself and the agent of the company, at the time of the subscription, that the road was to be constructed past his house, and that, if it were not, he would not be liable on the subscription. The ground of the decisio

of deception and without intention of performance, they may serve as a basis for a charge of fraud.95

however, is that this would be a fraud on the other subscribers, a point beyond the scope of the annotation.

95 Thus, if there is no intention of performance, fraud may be predicated

on

representations

inducing subscription to stock of railroad company, that the railroad would be located along a certain route, Kent County R. Co. v. Wilson (1875) 5 Houst. (Del.) 49;

-representations inducing donation of land to railway company, regarding the time within which the road would be completed, Henderson v. San Antonio & M. G. R. Co. (1856) 17 Tex. 560, 67 Am. Dec. 675;

-representation by railway company, inducing conveyance of land to it for a right of way, that it would establish a depot on the granted land, Chicago, T. & M. C. R. Co. v. Titterington (1892) 84 Tex. 218, 31 Am. St. Rep. 39, 19 S. W. 472.

Where representations were made to an owner of land in order to secure a deed from him for a railroad right of way, that if he did not sign the deed the railroad would condemn the land and would not permit him to cross the track, whereas if he did grant land for a right of way, the railroad would be located at a certain place, and there was evidence that the person making these representations knew at the time that the railroad would not be so located and that he had no control of its location, it was held in Starnes v. Raleigh, C. & S. R. Co. (1915) 170 N. C. 222, 87 S. E. 43, that the representations were not of a harmless promissory nature, but were of a material character, and, if knowingly false, constituted such fraud as would invalidate the deed.

And in Albitz v. Minneapolis & P. R. Co. (1889) 40 Minn. 476, 42 N. W. 394, the court applied the rule that a representation that it is the present intention of the representor to do certain things may constitute the basis for a charge of fraudulent representations, although a mere promise, afterwards unfulfilled, to do the thing, cannot constitute fraud, to a case of alleged fraudulent representations as to the location of a railroad and depot, inducing the grant to the company of a right of way. The court said that the rep

h. Promises of employment. The general rule already considered, that fraud ordinarily cannot be prediresentations as to where the railroad company was to place a culvert across the creek running through the plaintiff's land and as to how the culvert "was to be constructed," and also representations that the road "was to be built" on a line running through a certain village, and that its depot "was to be located" at a designated place, if taken as mere promises or assurances that the railroad company would do those things, would be insufficient, since fraud cannot be predicated on a mere promise although it is afterwards unfulfilled; but that, if the agent making these representations tended to create in the plaintiff the belief that it was, as a fact, "the then intention" of the defendant to do the things mentioned, and the representations might be understood and were understood by the plaintiff as asserting that fact, then a charge of fraud might be based upon such representations.

in

In an action on a note given in aid of the construction of the plaintiff railway company's line of road, it was held in Cooper v. Ft. Smith & W. R. Co. (1909) 23 Okla. 139, 99 Pac. 785, that facts sufficient to constitute a plea in bar of recovery on the ground of fraud were stated by allegations in substance that the note was executed on representations of the railway company, made to the citizens of a certain town, that if they would pay the company a specified sum it would extend the railroad to that city, otherwise it would divert the same to some other point, presumably to a certain rival city, which, it was represented, was a strong competitor for the road; that at the time these representations were made the company had already determined to build its road to the former city and had contracted to extend its line thereto, of which fact the citizens of that town were ignorant; that such representations were made for the purpose of securing the bonus, were false and deceptive, and were intended to and did deceive the citizens of that town, including the defendant, who executed the note on the strength of such deception. A somewhat similar case is Southard v. Arkansas Valley & W. R. Co. (1909) 24 Okla. 408, 103 Pac. 750, but the decision on this feature of the case turns on the fact

that reliance by the subscriber was not placed on the alleged false representations as to the location of the railroad.

The statement in Henderson v. San Antonio & M. G. R. Co. (1856) 17 Tex. 560, 67 Am. Dec. 675, must apparently be regarded in the light of the charges that the alleged false representations (as to the time when a railway would be completed, inducing a donation of land to the company) were false and were made with a view to deceive and defraud the complainant; although standing alone it seems to be opposed to the general rule that false representations, to constitute actionable fraud, must be predicated on past or existing facts, and not on promises or predictions as to the future. The court said: "It is insisted that their representations cannot be deemed fraudulent, for that they had relation to things in the future. But it is not necessary, in order to render the representations and assurances of a party, on which others have acted, binding upon him, that they should have relation to facts which had previously transpired. The representations as to what the defendants would do, when used as inducements to others to contract with them, become assurances and undertakings which they were bound to fulfil. They were obligatory upon them, and must be so held, or the contract would be void for the want of mutuality. If such assurances were not binding, there could be no binding promise to perform an act in future."

In a subsequent case in the same state, in which it was sought to cancel a deed given to a railway company for a right of way on the ground of fraud in representing, with intent to deceive, that a depot would be located on the granted land, the court laid down the rule as follows: "If the railway company, at the time it made the representations and promises before mentioned to the plaintiffs, did so with the design of cheating and deceiving the plaintiffs, and had no intention at the time of performing the promises, but used them merely as false pretenses to induce the plaintiffs to execute the deed, and if its conduct did have that effect, then we think that such acts and declarations, coupled with its subsequent utter failure and refusal to perform the promises or assurances, would amount to such actual fraud as

would authorize the plaintiffs to have the contract rescinded and the land restored to them. But, upon the other hand, if the promises or representations were made in good faith at the time of the contract, and the defendant subsequently changed its mind and failed or refused to perform the prom. ises, then such conduct of the company, originally or subsequently, would not constitute such fraud in legal acceptation as would justify the rescission of the contract or the cancelation of the deed." Chicago, T. & M. C. R. Co. v. Titterington (1892) 84 Tex. 218, 31 Am. St. Rep. 39, 19 S. W. 472.

The fraud which it was held in Crawford v. Mobile, J. & K. C. R. Co. (1903) 83 Miss. 708, 102 Am. St. Rep. 476, 36 So. 82, would be ground for avoiding a subscription made to aid in building a railroad, consisted of alleged false representations inducing the subscription as to the existing intent of the railway company, in that it was charged that the agent, in procuring the subscription, represented that, unless the citizens of a certain town subscribed a designated amount, the road would be built through another town, and that it would not be so built if the sum were subscribed, whereas, it was alleged, the railroad company had already let the contract for the building of a branch line to the town in which the subscription was secured, and intended at that time, and continued to carry out its intention, of building the main line of railroad to the other town.

And it was held in Weems v. Georgia Midland & G. R. Co. (1890) 84 Ga. 356, 11 S. E. 503, that the court should have submitted to the jury a plea set up as a defense to an action on a note given for subscription to stock of a railway company, to the effect that the note was given on representations of the company that it would only issue stock to a certain amount per mile and would only bond the road to a specified sum per mile, whereas in truth at the time the representations were made stock and bonds had already been issued, or agreed to be issued, in a larger amount. It will be observed that such representations are not only as to future intentions, but as to an existing fact, the fraud not consisting merely in an existing fraudulent in

tent.

In Gulf, C. & S. F. R. Co. v. Pittman

is made without intention of performance. The doctrine also finds application in this class of cases, which is recognized in some jurisdictions, that to future employment" made by the agent of the railway company in the negotiations consummated by the release, which employment was not furnished him. And the court said that whether the claimed oral promise of employment was made in good faith or falsely, whether the releasor relied upon it or not, and whether any attempt was made to carry it out or not, would not be investigated; that if the promise existed at all, it existed as a part of a negotiation which was finally concluded by a writing of a different purport.

And where the undisputed evidence and the special findings of the jury showed that a written contract for the settlement and release of a claim for personal injuries of an employee was executed by him with full knowledge and understanding that the question of his future employment could not be. considered in negotiating and effecting the contract of settlement, it was held in Black v. Wichita Union Terminal R. Co. (1918) 103 Kan. 332, 173 Pac. 1068, that an oral promise of an agent of the employer assuring the claimant of future employment, which promise was given to induce the claimant to make the contract, but which was not kept nor intended to be kept, was insufficient to vitiate the contract of settlement.

97 If there is no intention of performance, fraud may be predicated on a promise by an insurance company, inducing purchase of its stock by a physician, that, if he would purchase the stock, the company would employ him as its medical examiner at a stated salary (McLean v. Southwestern Casualty Ins. Co. (1916) 61 Okla. 79, 159 Pac. 660 (see also notes 88 and 96, supra)); or on a promise of employment, inducing promisee to purchase stock in corporation (Powers v. American Traffic Signal Corp. (1926) 167 Minn. 327, 209 N. W. 16).

It was held in Atchison, T. & S. F. R. Co. v. Skeen (1915) Tex. Civ. App. -, 174 S. W. 655, that if the authorized agent of a railway company, as an inducement to the execution of a release by an employee of a claim for personal injuries, promised the employee, and by such promise induced 51 A.L.R.-9.

fraud cannot be predicated on a promise, even though it is made without an intention of performance. 98 It may be observed in this connection that the

him to believe, that if he would execute the release he would obtain employment from the company, and the promise was not made in good faith, the release was voidable, and might be set aside for fraud.

And it seems to be assumed in Southwestern Teleph. & Teleg. Co. v. James (1906) 41 Tex. Civ. App. 560, 91 S. W. 654, that a release of a claim for personal injuries sustained by an employee could be avoided if the release was induced by a promise on the part of the employer of permanent employment which it had no intention of performing, but the case turns on the fact that the evidence did not show a breach of the promise.

It was held in Smith v. St. Louis & S. F. R. Co. (1915) 95 Kan. 451, 148 Pac. 759, that the evidence warranted a finding that a release and settlement of a claim by a railway employee for personal injuries was procured through the making of false representations as to future employment, the contention being overruled that the claim agent who made the representations was without authority to do so, and that proof thereof was an attempt merely to supplement a written contract, consisting of the settlement and release, with parol evidence of an oral agreement.

98 In Younger v. Hoge (1908) 211 Mo. 444, 18 L.R.A. (N.S.) 94, 111 S. W. 20, in which the court states that a promise, though made without intention to fulfil it, is not a misrepresentation of an existing fact, the promise, which, it was held, would not justify rescission of the contract, was made to one as an inducement to him to trade a farm for stock in a corporation, and consisted of an offer of a salaried position in the concern.

And supporting the same doctrine is Smith v. Bowler (1857) 1 Disney (Ohio) 520, affirmed in (1858) 2 Disney, 153, where the promise inducing one to change employment was that he would be given a certain salary in his new position for a specified term, after which he would be given an interest as partner in a new firm to be formed by the same parties, equal to a certain sum per annum, or a salary of this amount, which promises, it was al