son, it is not feasible, within the limits of the annotation, to make an exhaustive collection of cases of this kind, although some of them have considered the general question under annotation. The general rule that fraud cannot be predicated merely on an unfulfilled

have a decree rescinding the contract and setting aside the deed; and that an examination of the cases led to the conclusion that the intervention of equity in such cases is sanctioned on the theory that the neglect or refusal of the grantee to comply with his contract raises a presumption that he did not intend to comply with it in the first instance, and that the contract was fraudulent in its inception, wherefore a court of equity would not permit him to enjoy the conveyance so obtained. It may be observed that in this state the court has adopted the rule that, even though the promisor, at the time of making the promise, does not intend to fulfil it, fraud cannot be predicated on such unfulfilled promises, so that the holding in the class of cases indicated seems to be an exception to or limitation of this rule.

In Russell v. Robbins (1910) 247 Ill. 510, 139 Am. St. Rep. 342, 93 N. E. 324, the court, in dealing with a case where cancelation of a deed was sought on the ground that it was made in consideration of future support of the grantor, which was not furnished, said that it was true that ordinarily a promise to do something in the future does not constitute a fraud, and that a violation or disregard of such a promise does not amount to a fraud; but that deeds such as those in question belong to a peculiar class, distinguished in the decisions from ordinary deeds of bargain and sale by the fact that the grantor gave up his property for consideration of future support, which a court of equity could not compel the grantee to furnish and a court of law could not make good with damages; and that, if the evidence is such as to justify the conclusion that a contract of this kind was entered into with a fraudulent intent or has been abandoned, a court of equity will set aside the conveyance.

Contracts by a grantee to furnish a home for and support to the grantor, constituting the consideration for a conveyance by the grantor to the grantee, were regarded in Anderson v. Reed (1915) 20 N. M. 202, L.R.A.1916B,

promise has been held inapplicable to prevent an action for damages for failure to provide support, pursuant to an agreement made in consideration of a conveyance of property, where there is a wilful and wrongful refusal to comply with the contract. 109 And various

862, 148 Pac. 502, as standing in a special class, as regards the right of the grantor to cancel the conveyance on the ground of fraud. It was said that the necessity of avoiding such a contract in cases where there is an intentional or inexcusable failure to perform by the grantee, in order to do justice, is so paramount, cancelation being the only adequate and complete remedy in such cases, that the court will give the remedy upon any reasonable theory. And it was held that, where the complaint proceeded upon the theory of fraud in the inception of the contract, and the facts showed that the grantee never intended to perform the contract, the court properly decreed cancelation.

And in Bogie v. Bogie (1876) 41 Wis. 209, the court, in holding that a proper case for rescission of the conveyance on the ground of breach of the agreement was shown, pointed out that cases of conveyances of property by aged and infirm persons to their children, in consideration of promises of support and maintenance, are somewhat peculiar in their character and incidents and must sometimes be dealt with on principles not applicable to ordinary conveyances.

There is a dictum, also, in Hewett v. Dole (1912) 69 Wash. 163, 124 Pac. 374, to the effect that agreements to support aged or infirm persons, in consideration of a transfer of property, stand on special considerations, as a fiduciary relation of the parties, and that a court of equity may grant a rescission in such cases on the failure of the grantee to perform the promise, on principles not applicable to ordinary conveyances. See note 147, infra.

Relief in such cases is granted on the broad ground that there is no adequate remedy at law, and that equity will not permit a party to enjoy the fruits of a contract when he deliberately refuses to perform the obligation thereby imposed upon him. Hyman v. Langston (1923) 210 Ala. 509, 98 So. 564.

109 Gardner v. Frederick (1917) 96 Wash. 324, 165 Pac. 85, in which the

other cases, illustrations of which are cited in the footnote, 110 support the doctrine that, where a deed is executed in consideration of an agreement by the grantee to support the grantor, and this agreement is made by the grantee for the fraudulent purpose of securing the deed, without intention of performance, and it has this effect, these court said: "It is doubtless a general rule that, where the promisor undertakes to do something in the future, the failure to perform the promise is not fraudulent, unless there was an intention at the time of making it not to perform. That rule, however, is not applicable to cases of this kind. The rule in this state, as well as the great weight of authority, is to the effect that, where an aged parent conveys property to a son or daughter, or other person, in consideration of future support and care, and there is a wilful and wrongful withholding of such support and care, in equity the contract may be rescinded, or, if rescission cannot be had, an action for damages will lie." In Webster v. Adams (1923) 79 Ind. App. 261, 137 N. E. 883, the court, while recognizing the general rule that fraud cannot be predicated upon statements which are promissory in their nature and relate to future actions, held that this rule did not apply in a suit to cancel a deed on the ground of fraud, where an owner of land, of advanced years and in feeble condition, was induced by relatives to convey the property to them on their fraudulent representation that, if he would do so, retaining in himself a life estate, they would care for him, which promise they did not intend to and did not perform. The court said: "In addition to the allegation that the promises were falsely and fraudulently made, and that the same were broken, the complaint contains averments setting forth the relationship of the parties and the confidence of appellee in the good faith of appellants because of such relationship. It is also charged in the complaint that appellee was, at the time, mentally incompetent to transact business of any kind,-was, in fact, 'incapable of comprehending the nature and import of general business, and especially any disposition of his real estate,' which fact was known to appellants. It is further averred that appellants 'at no time intended to perform any of said promises . .

facts constitute a fraud vitiating the conveyance, and equity will set it aside.

m. Miscellaneous.

The general rule that fraud may not ordinarily be predicated on unfulfilled promises or statements as to future events (or the exception, where there is an existing intent at the time not to

or to pay him any valuable consideration therefor,' and that there was, in fact, a total failure of consideration. If these facts, which are well pleaded, are true, and we must take them as true, in considering the demurrer,—it cannot be said that the only allegations of the complaint purporting to charge fraud consist of promises to be performed in the future."

Illinois. Oard v. Oard (1871) 59 Ill. 46; Jones v. Neely (1874) 72 Ill. 449; Seymour v. Belding (1876) 83 Ill. 222; Kusch v. Kusch (1892) 143 Ill. 353, 32 N. E. 267; Cooper v. Gum (1894) 152 Ill. 471, 39 N. E. 267; McClelland v. McClelland (1898) 176 Ill. 83, 51 N. E. 559; Fabrice v. Von der Brelie (1901) 190 Ill. 460, 60 N. E. 835; Gillen v. Gillen (1909) 238 Ill. 218, 87 N. E. 388; Hensan v. Cooksey (1908) 237 Ill. 620, 127 Am. St. Rep. 345, 86 N. E. 1107; Stebbins v. Petty (1904) 209 Ill. 291, 101 Am. St. Rep. 243, 70 N. E. 673; Domeracki v. Janikowski (1912) 255 Ill. 575, 99 N. E. 579.

perform the promise) has been applied or recognized as applicable in cases involving attorneys at law or relations

111 See Deyo v. Hudson (N. Y.) note 26, supra; as to promise to pay attorneys, see Hunt v. Lewis (Vt.) note 101, supra; see also Buresh v. Seymour (Ill.) note 64, supra, as to representations of profits from law business.

Fraud may not ordinarily be predicated on statements by attorneys to a property owner, made during the redemption period, that their reputation had been injured in the foreclosure suit, and that they would not permit redemption without the payment of a large sum of money by way of damages to them, in addition to the money required to redeem, and that, if redemption were attempted, they would appeal or involve the title in further litigation, these statements being held to amount to a mere threat, and not to a representation of facts on which fraud could be predicated. Smith v. Boothe (1918) 90 Or. 375, 176 Pac. 793.

The same is true as to assurances by attorneys that a judgment obtained by them would be sustained on appeal, inducing the client to make a contract regarding attorneys' fees, the statements amounting merely to an expression of opinion as to what could or would be done in the future. Laybourne v. Bray (1916) Tex. Civ. App., 190 S. W. 1159, later appeal in (1919) - Tex. Civ. App. —, 214 S. W. 630. (The court, however, regarded such representations as admissible on the issue of good faith on the part of the attorneys towards the client.)

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

Nor may fraud be predicated on representations by attorneys engaged to bring an action by attachment that if the plaintiff would sign the attachment bond as one of the sureties, a certain other party would also sign the same, and that if he did not do so, they would not file the bond with the clerk. Bullock v. Wooldridge (1890) 42 Mo. App. 356. (The court held a petition stating the above insufficient because the false representations were not made as to existing or pre-existing facts, although it was also alleged that the representations were wilfully and

falsely made and were made to deceive the plaintiff and fraudulently to obtain his certificate to the bond.)

112 The general rule that fraud may not ordinarily be predicated on unfulfilled promises or statements as to future events has been applied or recognized as applicable with regard to

- representations that stock in building and loan association would be worth a certain amount per share, inducing purchase of stock, Lake v. Security Loan Asso. (1882) 72 Ala. 207;

- representation as to length of time required and number of payments necessary to mature stock in building and loan association, inducing subscription thereto, Johnson v. National Bldg. & L. Asso. (1900) 125 Ala. 465, 82 Am. St. Rep. 257, 28 So. 2. A similar case is Bell v. Southern Home Bldg. & L. Asso. (1904) 140 Ala. 371, 103 Am. St. Rep. 41, 37 So. 237;

-representation inducing purchase of stock in building and loan association, as to the time when the stock would mature, Campbell v. Eastern Bldg. & L. Asso. (1900) 98 Va. 729, 37 S. E. 350;

-representations inducing one to become a member of and borrower from a building and loan association, that he would obtain money from it at a lower rate of interest than he was then paying, and that the shares of stock would attain their full value in a certain length of time, Myers v. Alpena Loan & Bldg. Asso. (1898) 117 Mich. 389, 75 N. W. 944;

- statements in circulars or prospectuses of a building and loan association as to the time within which the stock would mature and the debt of a subscriber be liquidated by the earnings, Henry v. Continental Bldg. & L. Asso. (1909) 156 Cal. 667, 105 Pac. 960;

-

- representations amounting merely to opinions as to advantages which would accrue from financial scheme of building association, Winget v. Quincy Bldg. & Homestead Asso. (1889) 128 III. 67, 21 N. E. 12.

Representations by officers of building and loan associations as to the time when shares therein will mature are mere matters of opinion, and do not constitute such fraud or misrepresentation as will vitiate the contract

of membership induced by them, Hunter v. International Bldg. & L. Asso. (1900) 24 Tex. Civ. App. 453, 59 S. W. 596, and other cases supra.

But in Hartman v. International Bldg. & L. Asso. (1921) 28 Ind. App. 65, 62 N. E. 64, the court quotes and applies the doctrine that a statement of a matter in the future, if affirmed as a fact, may amount to a fraudulent representation, in a case where the fraudulent representation induced one to become a member of a building and loan association, it being falsely represented to him that, if he would become a member and contract the loan in question and pay the dues, interest, and premiums, the bond and mortgage given for the loan would be paid and canceled by a specified number of payments. The court said: "The statements made to appellant were not merely statements of what appellee had an intention of doing, nor were they simply the expression of an opinion that a certain specified number of monthly payments would satisfy the bond and mortgage, but the representation made was that of a fact, and, although it was of a matter in the future having proved to be false, the rights of the injured party relying upon it are not different from those growing out of the misrepresentation of a present fact." The court pointed out that the representations charged to have been made were not inconsistent with a reasonable construction of the condition named in the bond, and that the fraud consisted of the false representations respecting the cost of the loan, rather than misrepresentations as to the contents of the bond and mortgage. That the representations were known to be untrue at the time they were made is apparently not the ground of the decision, since in this state an existing intention not to perform a promise does not constitute an exception to the rule that fraud may not ordinarily be predicated on an unfulfilled promise.

113 Fraud may not ordinarily be predicated on representations that if one will put a certain amount of money into a "voting contest" conducted on behalf of a newspaper, he will win prizes (Brown v. C. A. Pierce & Co. (1918) 229 Mass. 44, 118 N. E. 266); or on a representation that certain results will follow if one will conduct a contest (D. H. Baldwin & Co. v. Moser (1909) Iowa, - 123 N. W. 989,

representation that, by contest, purchaser of pianos would sell a certain number).

In Waggoner v. Western Carolina Pub. Co. (1925) 190 N. C. 829, 130 S. E. 609, an action against a publishing company to recover money alleged to have been fraudulently obtained from the plaintiff by the defendant's agent while conducting a subscription prize contest, the alleged fraudulent representations were to the effect that, if the plaintiff would put into the contest a certain amount of money of her own, she would certainly win the first prize. The jury found that the agent had fraudulently obtained from the plaintiff the money, as alleged in the complaint, and the plaintiff recovered; but the questions discussed relate to ratification by the principal of the agent's conduct, and the effect of the nature of the transaction as being against public policy.

114 As to subscriptions to stock in oil and gas companies and mining concerns generally, see VII. f, supra, particularly notes 81 and 84.

The doctrine that false representations cannot be based merely on representations as to future events or intentions was unsuccessfully invoked in Logan v. Walker (1922) 152 La. 880, 94 So. 430, because it was held that the representation related to existing facts, it being alleged that the plaintiff (an ignorant colored woman of weak mind, who contended that she did not know what she was signing) had been induced to execute a conveyance of an interest in a mineral lease on representations by the grantee that "her oil was tied up, and that she would never get anything out of it unless she signed" the instrument, her signature being induced under the belief that she was signing the same so as to obtain a release of her part of the oil that had been withdrawn from the ground, and the payment to her of the proceeds.

As to representations regarding prospects of, or profits from, mines or mineral lands, inducing purchase of an interest therein, see also Tuck v. Downing (Ill.) Engemann v. Allen (Ky.) and Hotchkiss v. Bon Air Coal & I. Co. (Me.) note 64, supra.

As to representations in case of leases of mines or mineral land, see note 75, supra.

Attention is called, also, to Rorer

Iron Co. v. Trout (Va.) note 19, supra; Belmont Min. Co. v. Rogers (Ohio) note 23, supra; Farris v. Strong (Colo.) and Miller v. Sutliff (Ill.) note 70, supra; Erisman v. McCarty (Colo.) note 102, supra; Harriage v. Daley (Ark.) note 73, supra (development of coal land).

115 See Lynch v. Murphy (Mass.) Electric Hammer Corp. v. Deddens (Ky.) and Denton v. Macneil (Eng.) note 79, supra, as to representations inducing stock subscriptions in corporations organized for the manufacture or sale of patented articles.

Attention is called, also, to Marquardt v. Bartlett (Iowa) note 79, supra (representations regarding profits from invention); Stewart v. Puck Soap Co. (Iowa) note 102, supra (representations regarding amount of royalty).

Fraud may not ordinarily be predicated on

- representations as to value of an invention and its future possibilities, Patent Title Co. v. Stratton (1898; C. C.) 89 Fed. 174;

- representation made to one to induce him to enter into a contract requiring the use of a certain imperfect patented machine, that the representor would, by a new invention or discovery, to be made in the future, remove such defect and perfect the machine, Norfolk & N. B. Hosiery Co. v. Arnold (1892) 49 N. J. Eq. 390, 23 Atl. 514 (see note 127, infra);

-representation by seller, inducing purchase of patent right, as to its value and the profits which would be derived therefrom, together with assurances that the purchaser could sell the same, and that, if he did not succeed, the seller would assist him, these representations being regarded merely as "dealer's talk," Bishop v. Small (1874) 63 Me. 12.

In Jacquot v. Farmers' Straw Gas Producer Co. (1926) 140 Wash. 482,

249 Pac. 984, where the purchaser of a right to manufacture and sell a patented device sought to recover the amount of a note for the purchase price, which he had been compelled to pay, on the ground of fraud and deceit, representations as to the cost of manufacture, which proved to be several times that stated, was held not a mere nonactionable expression of opinion. It was held, also, that representations by the seller that he would leave one of the completed devices with the purchaser and assist him in getting the business started might constitute a basis for fraud, giving the buyer a right of action to recover the purchase price, if the promise was made with an intent on the part of the promisor not to perform it.

See also Macklem v. Fales (1902) 130 Mich. 66, 89 N. W. 581, where the representation was as to the selling expense of marketing a patented article.

But if the promise is made without an intention of performance, the exception to the above rule applies in this class of cases, so that, if there is no intention of performance, fraud may be predicated on a promise made by a seller of a patent that he would want a certain number of articles of the kind covered by the patent, and would buy them of the purchaser at a price above the cost of manufacture, which would yield a specified profit (Goodwin v. Horne (1881) 60 N. H. 485); or on representations and promises inducing one to exchange property for the right to sell a certain patented article within a given territory, that the promisors would advertise the article and resell the territory for the promisee, to the latter's advantage (Touchstone v. Staggs (1897) — Tex. Civ. App., 39 S. W. 189).

116 Fraud may not be predicated on a representation by purchaser of his partner's interest, that undisclosed future partners would not consent to give more than a certain sum for the property (Vernon v. Keys (1810) 12 East, 632, 104 Eng. Reprint, 246); or on a promise by a partner, on the purchase of his copartner's interest in the firm, to discontinue business relations with a third person, noncompliance with the promise not authorizing rescission of the contract of sale (Hirsch v. Hirsch (1860) 21 Ark. 342).

Although some of the false repre