promise of employment inducing, or helping to induce, one to enter into contractual relations with the promisor, may be of such a nature as to constitute a misrepresentation of fact, and therefore sufficient to serve as a basis for fraud, as, where the representation is that one has already arranged that the other person shall have a certain position or salary. 99

leged, were wilfully and purposely made, without any intention of performance.

99 Thus, in Schwab v. Esbenshade (1913) 151 Wis. 513, 139 N. W. 420, where the plaintiff was induced to purchase from the defendant shares of stock in a corporation of which the defendant was treasurer and manager, on alleged representations by the defendant that he had arranged with the other stockholders and directors of the company that, if the plaintiff would purchase the stock, he would be elected a director and treasurer, and made business manager of the corporation at a stated salary, it was held that, if these representations were false and were relied on and acted upon, they were ground for rescission of the contract of sale.

100 The general question of the effect of marital misconduct on marriage settlements or gifts from one spouse to the other is treated in annotation in 29 A.L.R. 198. Attention is called especially to subdivision III. c, dealing with fraud in inception of transaction through misrepresentation of concealment of illicit intentions.

The general rule that fraud may not be predicated on an unfulfilled promise or representations as to future events has been applied, or recognized as applicable, with regard to

-promise by defendant in bastardy. proceeding to marry the prosecutrix, inducing her to make entry of satisfaction and to dismiss the action, Noble v. State (1872) 39 Ind. 352; State ex rel. Creighton v. Carlisle (1899) 21 Ind. App. 438, 52 N. E. 711; — promise by one of the parties to an antenuptial agreement, inducing the making of the agreement, that, apart from the provision made for the latter in said agreement, he would amply and fully provide for her, and would arrange that she should always, during her lifetime, have a home where they were then living, Wellington v. Rugg (1922) 243 Mass. 30, 136

i. Promises of marriage; domestic relations cases.

The general rules as to the predicating of fraud on promissory statements find illustration in various cases where the promises involved domestic relations, as promises relating to marriages, antenuptial or separation agreements, and the like; 100 although, ;100 as indicated in some of the cases cited

N. E. 831 (see this case also under note 44, supra, as to confidential relations);

promises by a husband to live. with wife at indefinite future time, inducing separation agreement, Daniels v. Benedict (1899) 38 C. C. A. 592, 97 Fed. 367.

In Hodsden v. Hodsden (1897) 69 Minn. 486, 72 N. W. 562, it was held that allegations in the complaint were insufficient to support an action for fraud, in a suit by a husband to cancel a conveyance made to the wife, where the complaint did not allege any material facts showing a fraudulent intent on the part of the wife at the time of the making of the promise, but alleged merely that a conveyance was made by the husband to the wife upon her promise that, if he would do so, she would not desert him and would be a faithful, affectionate, and dutiful wife (which she had not been before), and that, after receiving the conveyance, she violated her promise, deserted him, and began suit for divorce.

But the exception to the above rule, which arises where the promise is made without an intention of performance, finds illustration also in this class of cases. Thus, the doctrine that fraud may be predicated on unfulfilled promises made with an intention of nonperformance has been applied or recognized as applicable with regard to

- promise of marriage made to induce execution of deed to promisor, Clarkson v. Pruett (1918) 201 Ala. 632, 79 So. 194;

-promise by wife, inducing husband to place her name in a deed as a grantee, that she would cease improper relations with other men and be a true wife, Ciarlo v. Ciarlo (1923) 244 Mass. 453, 139 N. E. 344;

promise by wife, who was living apart from her husband, in order to induce him to convey property to her, that she would return and live with

in the footnote, special consideration sometimes govern this class of cases.

j. Promises to pay or loan money, in general.

Representations or promises as to

him, Jones v. Jones (1903) 40 Misc. 360, 82 N. Y. Supp. 325.

(See also other cases cited in annotation above referred to, in 29 A.L.R. 198, 210 et seq.)

False professions of affection and fraudulent promise of marriage, inducing a conveyance of property, when the grantee at the time had no intention of fulfilling her promises, were held in Douthitt v. Applegate (1885) 33 Kan. 395, 52 Am. Rep. 533, 6 Pac. 575, to be ground for setting aside the conveyance.

Attention is called also to Moore v. Moore (N. Y.) note 26, supra; Abbott v. Abbott (Neb.) note 29, supra (dismissal of action for alienation of affections, on promise of conveyance of property); Harris v. Dumont (Ill.) note 51, supra (where the promise of marriage inducing a conveyance was accompanied by a misrepresentation of fact that the grantee was unmarried).

The doctrine that misstatements of intention which are material may, for the purpose of avoiding contracts on the ground of fraud, be regarded as misstatements of fact, was applied in Robert v. Robert (1914) 87 Misc. 629, 150 N. Y. Supp. 366, in an action for annulment of marriage induced by an alleged fraudulent promise that if the plaintiff would give to the defendant her savings, he would marry her, and, with that and his own money, they would buy a hotel and go into business; it appearing that, two days after the marriage, she gave him money to be paid on account of the purchase of a hotel, and that, after receiving the same, he departed and had not been seen or heard of since. The court said that this conduct on the part of the defendant left no doubt that he never had the slightest intention of fulfilling his agreement, but rather that he intended to defraud the plaintiff of her money, and entered into the contract of marriage to further that end.

That a promise made without any intention of performing it constitutes actual fraud with relation to ordinary contracts, and is expressly declared by the California Civil Code, is stated in Miller v. Miller (1917) 175 Cal. 797,

payment of money are involved in many of the cases, and, without attempting at this point to collect all of the cases of this kind, attention is called to the fact that this is a kind L.R.A.1918D, 415, 167 Pac. 349, Ann. Cas. 1918E, 184, in which the question was as to the right to annul a marriage contract on the ground of fraud of one of the parties at the time it was entered into, in that there was an intention at that time not to consummate the marriage. And the court said it saw no good reason why the rule above indicated as to ordinary contracts was not true with regard to the marriage relation.

In Cox v. Edwards (1913) 120 Minn. 512, 139 N. W. 1070, in which the court lays down the rule that, although fraud cannot generally be predicated on a promise to do an act in the future, still, where the promise implies a present state of mind or existing intention of the promisor, and such is not the fact, but the promisor, in order to obtain a release, falsely induces the promisee to believe in and rely on the existence of such state of mind or present intention, such conduct may constitute legal fraud, the action was for damages for breach of promise to marry, one of the defenses being a release of the cause of action. The court said that it had no doubt that if the defendant, in order to procure the release from the plaintiff, made the promise to marry her, with no intention to fulfil the same, but simply to deceive her into executing the release, and she, in reliance on the promise, was induced to give it, the defendant's promise, although relating to something to be fulfilled in the future, might constitute fraud which would avoid the release; that while, generally speaking, fraud cannot be predicated on promises, yet a promise to marry is based on the present state of mind of the promisor, implying the existence of a present intention, and if no such intention exists, but the promisor nevertheless, for the sole purpose of inducing the promisee to act, falsely represents that the intention does exist, and the promisee acts in reliance on the promise, legal fraud is shown.

In Basye v. Basye (1899) 152 Ind. 172, 52 N. E. 797 (which is set out in note 44, supra), the decision that a deed from the husband to the wife

of promise to which especially the general rule that fraud may not ordina

might be rescinded on the ground of fraudulent representations is based apparently on the confidential or trust relationship of the parties.

Culbertson v. Young (1900) 86 Mo. App. 277, is to the effect that fraud may be predicated on promises made by a wife and stepchildren to cease gross mistreatment and abuse of the husband, and thereafter to treat him with kindness and affection, the same being made in order to obtain a transfer of property from him to them, with the fraudulent intent not to fulfil the promises. But in so far as this case may be regarded as an authority for the proposition that fraud may be predicated on a promise made without intention of performance, it seems out of line with later decisions in this state. See cases in note 34, supra.

But promises and representations made by a divorced husband, who, by the terms of the decree of divorce, was under obligations to pay alimony, that he would see that taxes and interest were paid, and would redeem certain property, inducing her to make a new settlement, were held in Van Sickle v. Harmeyer (1912) 172 Ill. App. 218, (in which state the minority rule above indicated, under III. obtains), not sufficient on which to predicate fraud, the court saying that, giving to the evidence the most favorable construction possible, it only tended to show that, in order to induce the plaintiff to consent to the entry of the settlement decree, the defendant made to her certain promises and agreements, which he had not performed, and which, at the time the promises and agreements were made, he did not intend to perform; that this was not fraud in law nor did it afford a ground for relief in equity. The court overruled the contention that confidential relations existed between the parties, in view of which the promises might be regarded as fraudulent; it appearing that a divorce had been granted a year prior to the settlement, and that there had been repeated attempts during that time to collect alimony.

And insincerity on the part of a wife in promising that, if her husband paid her money (for which he executed his note to a third party for her use) to enable her to make a visit abroad, she would live with him on her return, in that, when she made it, she did not

rily be predicated on unfulfilled promises and representations as to future intend to perform the promise, was held in Kennedy v. Howell (1850) 20 Conn. 349, not to show fraud in the execution of the instrument, on nonperformance of the promise, entitling the husband to avoid liability on the note. But there were other grounds for the decision, which seems overruled by the later cases, in so far as it supports the doctrine that a promise made without intention of performance may not constitute a fraud. See cases under note 14, supra.

Without attempting exhaustive treatment, attention is called to the fact that there are cases to the effect that a marriage which has not been consummated by cohabitation may be annulled on the ground of fraud, where it is induced by false representations that the civil ceremony will be followed by a ceremonial marriage according to the religious faith of the promisee, the cases possibly admitting of the view that the promisor did not intend to fulfil the promise at the time he made it. See Rubinson v. Rubinson (1920) 110 Misc. 114, 181 N. Y. Supp. 28; Watkins v. Watkins (1921) 197 App. Div. 489, 189 N. Y. Supp. 160; Rosza v. Rosza (1922) 117 Misc. 728, 191 N. Y. Supp. 868. Unless these cases can be explained on the ground that (as it expressly appears in the Watkins Case) the promisor did not intend to carry out his promise when he made it, they seem to be opposed to Schachter v. Schachter (1919) 109 Misc. 152, 178 N. Y. Supp. 212, in which the court applied the general rule that fraud cannot be predicated on a promise to do something in the future, in holding that, under facts similar to those above stated, the court would not annul the marriage.

In the recent case of Rutstein v. Rutstein (1927) 221 App. Div. 70, 222 N. Y. Supp. 688, the court said that the decisions of the state had uniformly held that a marriage might be annulled for any fraud which would invalidate or authorize the cancelation of any contract. And it was held that annulment of the marriage was justified on the ground of fraud, where there was evidence that the plaintiff, who was of the Jewish faith, was induced to consent to a civil marriage on the promise or representation of the defendant that she would embrace that faith, and that a ceremonial mar

riage should be performed by a Jewish rabbi, whereas she never intended to carry out the promise, the marriage never having been consummated by cohabitation.

The New York cases above cited, holding that the marriage might be annulled on the ground indicated, were disapproved in Wells v. Talham (1923) 180 Wis. 654, 33 A.L.R. 827, 194 N. W. 36, where, in holding that the promise of a party to a marriage ceremony, that a second ceremony would be performed according to the rites of a particular church, with no intention of performing it, is not such fraud as will avoid the marriage, the court, citing the above cases, said that they were at variance with the rule generally adopted in this country; that, even in ordinary civil cases, it is a familiar rule that representations, to be fraudulent, must relate to a present or past state of facts, and not to promises looking to the future; that there is some division of authority on the question whether an action for fraud may be based on a false statement of present intent which is material, made with intent to deceive and relied on by the other parties; but that marriage is not an ordinary civil contract, and should not be annulled on the ground of broken promises.

It was held in Williams v. Williams (1911) 71 Misc. 590, 130 N. Y. Supp. 875, that annulment of marriage on the ground of fraud was not justified, where the alleged fraud consisted in promises made by the defendant to the plaintiff that she need not leave her home, and that the fact of marriage would make no difference in her circumstances or condition, but that she could always continue to reside at her home as formerly.

And it was held in Beckermeister v. Beckermeister (1918) 170 N. Y. Supp. 22, that fraud warranting the annulment of the marriage relation was not shown by allegations of false and fraudulent promises made by one to secure his release from jail, to which he had been committed in bastardy proceedings, that he would marry the prosecutrix (which he did), and would properly support the child and fulfil the marital obligations, the latter representations amounting merely to a promise as to future conduct, and adding nothing to the contract which the law infers from marriage.

101 It was said in Brooks v. Pitts (1919) 24 Ga. App. 386, 100 S. E. 776, that ordinarily promises to perform some act in the future, although subsequently broken without excuse, will not amount to fraud in legal acceptation, and that especially is this true of a promise to pay money; that otherwise any breach of contract would amount to fraud. To the same effect is Atlanta Skirt Mfg. Co. v. Jacobs (1910) 8 Ga. App. 299, 68 S. E. 1077.

In a jurisdiction in which the rule obtains that fraud may not be prediIcated on unfulfilled promises, even though they are made without intention of performance, it has been held that a bill which seeks to set aside a deed upon the theory that the grantee procured the conveyance by agreeing to pay a certain sum, which he never intended to and did not pay, presents merely a case of an unperformed contract. Murphy v. Murphy (1901) 189 Ill. 360, 59 N. E. 796.

In Mathews v. Eby (1910) 149 Mo. App. 157, 129 S. W. 1016, it was held that a promise made by the purchaser of personal property that he would send the seller a check on his (the purchaser's) return home, which he did not do, did not constitute such a false representation as to constitute a fraud, so as to permit the suing out of an attachment on the ground that the debt was fraudulently contracted.

See also Baker v. Allen (Colo.) note 147, infra, to the effect that nonpayment is not sufficient evidence of original fraudulent intent; Reagan v. Hadley (Ind.) note 51, supra; Blackburn v. Morrison (Okla.) notes 68, supra, and 159, infra; Gauthrier v. Atchison, T. & S. F. R. Co. (Wis.) note 161, infra; and Hamar v. Alexander (Eng.) note 51, supra, promise to pay if another failed to do so.

As to promises to pay taxes, interest, encumbrances, or debts of the vendor, on conveyances of real property, see note 66.

And in other cases the general rule that fraud may not be predicated on unfulfilled promises or representations as to future events has been applied or recognized as applicable with regard to

-statement that note would be paid at maturity, Maupin v. Levison (1925) 142 Va. 810, 128 S. E. 255;

promise to pay attorneys as soon as their services are performed, Hunt v. Lewis (1914) 87 Vt. 528, 90 Atl. 578, Ann. Cas. 1916C, 170 (even though there is an intention at the time not to perform the promise);

-assurance by maker of promissory note against which the Statute of Limitations had run, of which he was ignorant, that the note was good, and that he would pay it, made to prospective purchaser of same, inducing the purchase, Black v. Miller (1889) 75 Mich. 323, 42 N. W. 837;

-promise by township trustee to his successor in office, that he would pay to the latter public money which he was owing the township, inducing the latter to report the money as on hand, State ex rel. Wayne Twp. v. Prather (1873) 44 Ind. 287;

-statement by merchant, inducing the sale of goods to him on credit, that he expected to discount his bills on a certain future date, Louis F. Fromer & Co. v. Stanley (1897) 95 Wis. 56, 69 N. W. 820;

representation by trustee to whom property had been conveyed by the debtor for creditors, inducing certain creditors who were relatives of the debtor not to present their claims, that, if they did not do so, the claims could be paid out of the business after the other creditors were paid in full, and that bankruptcy proceedings would probably result if the claims were then insisted on, Kirkland v. Dressel (1919) 104 Wash. 668, 177 Pac. 643;

- promise by insolvent debtor that he would settle with all his creditors by paying them the same per cent of

their claims, there being, however, no agreement that all the creditors should release the debtor on the same terms in order to make the receipt binding on the particular creditor, Argall v. Cook (1875) 43 Conn. 160.

Representation by a debtor in giving a postdated check for the debt, that he would pay the check, was held in La Croix v. Eaton (1925) - Vt. 133 Atl. 745, to be insufficient as a basis of actionable fraud, since it was of a merely promissory nature, even though at the time it was made the promisor had no intention of performance, and made the same with intent to deceive the promisee.

See also Gray v. Palmer (N. Y.) note 144, infra.

But other cases are to the effect that if, at the time it is made, there is an intention not to perform the promise, fraud may be predicated on a

- promise by a judgment debtor that, if the creditor would refrain from applying for a receiver or issuing an execution, and would extend the time within which to pay the judgment until the decision of the appellate court, he would pay the judgment in the event it was affirmed, Hobaica v. Byrne (1924) 123 Misc. 107, 205 N. Y. Supp. 7;

- promise inducing debtor to transfer his property to one of his creditors, that, if he did so, such creditor would pay all his debts and prevent his property from being sacrificed, Ivancovich v. Stern (1879) 14 Nev. 341;

- promise by mortgagee that he would discharge encumbrances on the property, the mortgage being made without other consideration than this representation, Hill v. Gettys (1904) 135 N. C. 373, 47 S. E. 449;

- representation that one would shortly be appointed administrator: and would pay for goods purchased out of a certain fund, Hancock v. Blumentritt (1925) - Tex. Civ. App. 269 S. W. 177.

The rule that the making of a promise with no intention of keeping it amounts to an actionable misrepresentation was held applicable in Guy T. Bisbee Co. v. Granite City Invest. Co. (1924) 159 Minn. 238, 199 N. W. 14, in a case where parties were induced to execute and deliver waivers of their lien rights in reliance on representations that their claims would be paid out of money furnished by the representor upon security of a mortgage on