promise must be shown, if the jury is to infer a fraudulent intent. 166

And under the California Code (under which fraud may consist of a promise made without intention of performance), the question is one of fact. Bechtold v. Coney (1919) 42 Cal. App. 563, 183 Pac. 841.

It was held in Tatum v. Orange & N. W. R. Co. (1922) — Tex., 245 S. W. 231, that the question whether an alleged promise of employment, made to induce the execution of a release of a claim for personal injuries, was made in good faith or was fraudulently made, with no intention at the time of making it of carrying it into effect, should have been submitted to the jury, which should determine the intention of the promisor, from a consideration of all the acts and declarations of the representatives of the releasee made in connection with the securing of the release, coupled with its subsequent conduct with reference to performance, and that the court could not determine as matter of law that the promise was made in good faith merely from a statement made in the course of the releasor's testimony, in detailing a conversation with the agent of the releasee, to the effect that the agent wanted him to take a position with the releasee before he had completely recovered from the injury. In this instance, where the making of any promise of employment was denied, and the agent of the releasee testified that he never intended to give the position in question to the releasor, the court held that the jury might have found that the promise was in fact made and that the promisor had no intention of performance. On a later appeal in (1924) Tex. Civ. App., 261 S. W. 421, it was held there was sufficient evidence to justify the jury's finding that the promise of employment was made fraudulently without a purpose of performance.

But in Aderholt v. Seaboard Air Line R. Co. (1910) 152 N. C. 411, 67 S. E. 978, it was held that the evidence did not justify submission to the jury of the question whether a release of a claim for personal injuries sustained by a railway employee was procured. by fraud, in promising the releasor employment and then discharging him, where it appeared that, after the release was executed, he was employed for more than six months by the company, and was then discharged for in

IX. Statutes.

In California, Montana, North Daefficiency by one who, the evidence tended to show, had no knowledge of the release.

And in an action for injury to a railway employee, who contended that a release executed by him for a cash consideration and on a promise of permanent employment by the company was procured by fraud, the court in St. Louis, I. M. & S. R. Co. v. Morgan (1914) 115 Ark. 529, 171 S. W. 1167, held that submission to the jury of the question of fraudulent procurement of the release by false representations was unjustified, where it appeared merely that the releasor was employed and worked for a time and was then discharged, even though the evidence tended to show that he was discharged without just cause, and that he was physically able to continue his work. The court said that the fact that the employee was afterwards discharged for what his superiors contended was good cause did not tend to show that those who promised him employment at the time the release was executed did so fraudulently for the purpose of inducing him to sign the release.

It was held in Spead v. Tomlinson (1904) 73 N. H. 46, 68 L.R.A. 432, 59 Atl. 376, that a jury could not find that a Christian Science healer did not believe that he could induce God to heal a person suffering with appendicitis, when he stated to her that he could and would heal her, merely because they might believe that the statement that a cure could be effected without material aid was untrue.

166 In case of a continuing promise, as a promise of permanent employment inducing the execution of a release of a claim for damages for personal injuries, it has been held that the promisee cannot avoid the effect of an agreement induced by the promise, on the ground that it was made without intention of performance unless he shows nonperformance, since compliance with the promise is almost conclusive evidence that it was not falsely made. Southwestern Teleph. & Teleg. Co. v. James (1906) 41 Tex. Civ. App. 560, 91 S. W. 654, where an employee who had executed a release of claims for damages for personal injuries sought to avoid the effect of the release on the ground that it was obtained by fraud in that the agent of the employer who secured the release

kota, Texas, and possibly other states, the question under annotation is affected by statutory provisions, which, in general, expressly embody the rule

represented to the releasor that the employer would give him employment during the remainder of his lifetime, and that these representations were false. The court said, however, that, of course, it was true a case might be imagined in which the falsity of a promise and the purpose and intention not to keep it at the time it was made might be ascertained independent of subsequent developments.

167 Under the express provision of the California Code, actual fraud may consist of a promise made without any intention to perform it. See the following, among possibly other cases, decided under or referring to the statute: Cockrill v. Hall (1884) 65 Cal. 326, 4 Pac. 33; Brison v. Brison (1888) 75 Cal. 525, 7 Am. St. Rep. 189, 17 Pac. 689; Newman v. Smith (1888) 77 Cal. 22, 18 Pac. 791; Lawrence v. Gayetty (1889) 78 Cal. 126, 12 Am. St. Rep. 29, 20 Pac. 382, 17 Mor. Min. Rep. 169; Nordholt v. Nordholt (1891) 87 Cal. 552, 22 Am. St. Rep. 268, 26 Pac. 599; Hays v. Gloster (1891) 88 Cal. 560, 26 Pac. 367; Russ Lumber & Mill Co. v. Muscupiabe Land & Water Co. (1898) 120 Cal. 521, 65 Am. St. Rep. 186, 52 Pac. 995; Langley V. Rodriguez (1898) 122 Cal. 580, 68 Am. St. Rep. 70, 55 Pac. 406; Hartwig v. Clark (1903) 138 Cal. 668, 72 Pac. 149; Becker v. Schwerdtle (1903) 141 Cal. 386, 74 Pac. 1029; Matteson v. Wagoner (1905) 147 Cal. 739, 82 Pac. 436; Flood v. Templeton (1907) 152 Cal. 148, 13 L.R.A. (N.S.) 579, 92 Pac. 78; Martin v. Lawrence (1909) 156 Cal. 191, 103 Pac. 913; Rheingans v. Smith (1911) 161 Cal. 362, 119 Pac. 494, Ann. Cas. 1913B, 1140; Williams v. Hasshagen (1913) 166 Cal. 386, 137 Pac. 9; Millar v. Millar (1917) 175 Cal. 797, L.R.A.1918B, 415, 167 Pac. 349, Ann. Cas. 1918E. 184; California Credit & C. Corp. v. Carpenter (1926) Cal. App. -,246 Pac. 126; Glass v. Glass (1906) 4 Cal. App. 604, 88 Pac. 734; Locomobile Co. v. Belasco (1916) 32 Cal. App. 329, 162 Pac. 920; Holiday v. Tolosano (1918) 39 Cal. App. 151, 178 Pac. 170; Bechtold v. Coney (1919) 42 Cal. App. 563, 183 Pac. 841; Hall v. Mitchell (1922) 59 Cal. App. 743, 211 Pac. 853. Under the California statute making a promise with no intention at the time

prevailing at common law in most jurisdictions, to the effect that fraud may be predicated on a promise made without intention of performance. 167

of performing it a fraud for which a contract may be rescinded, the mere failure to perform a covenant does not relate back to and render the same fraudulent; but it is the existing intent not to perform it which renders the same wrongful. Lawrence v. Gayetty (1889) 78 Cal. 126, 12 Am. St. Rep. 29, 20 Pac. 382.

And actual fraud is always a question of fact, under the California Code. Bechtold v. Coney (1919) 42 Cal. App. 563, 183 Pac. 841. See in this connection, note 165, supra.

The Montana statute providing that deceit within the meaning of the act might consist of a promise made without any intention of performing it has been regarded merely as declaratory of the common-law rule. Kelly v. Ellis (1909) 39 Mont. 597, 104 Pac. 873; McIntyre v. Dawes (1924) 71 Mont. 367, 229 Pac. 846.

Under the express provisions of the North Dakota statute a promise made without intention of performance may constitute a fraud. See Tamlyn v. Peterson (1906) 15 N. D. 488, 107 N. W. 1081; Walters v. Rock (1908) 18 N. D. 45, 115 N. W. 511; Hellebust v. Bonde (1919) 42 N. D. 324, 172 N. W. 812.

In the earlier Texas cases the rule was adopted that fraud may be predicated on a promise made without intention of performance. In 1919 the legislature of that state enacted a statute providing that actionable fraud with regard to transactions in real estate or in stock in corporations or joint stock companies should consist of either a false representation of a past or existing material fact, or a "false promise to do some act in the future which is made as a material inducement to another party to enter into a contract, and but for which promise said party would not have entered into said contract." And it was also provided by the statute that "whenever a promise thus made has not been complied with by the party making it within a reasonable time, it shall be presumed that it was falsely and fraudulently made, and the burden shall be on the party making it to show that it was made in good faith, but was prevented from complying therewith by the act of God, the public enemy or by some equitable reason." Clem v. Ev

ans (1926) Tex. Civ. App. —, 286 S. W. 273, reversed in (1927)

Tex. – A.L.R. —, 291 S. W. 871; Bischoff v. Alderson (1923) Tex. Civ. App. 247 S. W. 330; Ford v. Smith (1925) - Tex. Civ. App. —, 274 S. W. 166; El Jardin Immigration Co. v. Karlan (1922) Tex. Civ. App. —, 245 S. W. 1043, later appeal in (1925) Civ. App. v. Roark (1927)

Tex.

277 S. W. 173; Prideaux Tex. - 291 S. W.

868, affirming (1926) Tex. Civ. App.

284 S. W. 624.

It was held by the Texas supreme

court in Clem v. Evans (Tex.) supra, that the latter part of the above statute relating to presumption and proof of prevention from compliance with the promise was unconstitutional, as in violation of the provision of the Bill of Rights that no citizen of the state should be reprived of property except by the due course of the law of the land. See annotation following this case in A.L.R.. The question of the validity of the statute is also presented in other cases cited in that annotation.

Accommodation notes, note 135.
Acetylene plant, note 141.
Adjustment, disputed items, notes
117, 132.

Advances for picking crops, note 152.
Advances in price, notes 141, 1431.

See also Value of corporate stock, infra.

Advertisements, notes 122, 142. Advisory board, corporation, note 90. Agency, profits of, note 65.

insurance, note 104.

exclusive, note 125.

continuance of, note 141. for stock food, note 141. Annulment of marriage, note 100. Antenuptial agreements, note 100. Apartment house, income from, note 66.

Assets, promise by bank to carry note as, note 135.

Assignment for benefit of creditors, notes 10, 101, 142.

Assignment of contract, note 25.
Associated Press news, note 79.
Attachment bond, note 111.
Attendance, number in, note 64.
Attorneys at law, notes 5, 111.
Auctions, notes 55, 143.

Automobiles, notes 126, 137-140. Banks, promises to carry or renew notes, notes 132, 135.

future value of stock in, notes 80, 86.

representations as to loans and payments, notes 101, 102. Barber business, notes 44, 77, 124,

159.

Baseball club, stock in, note 80. Bills and notes, see Notes, infra.

Boarding house, note 76.

See also Rooming house, infra. Boats, notes 43, 79.

Bond and stock subscriptions, notes 10, 781-92.

of railway companies, notes 9495. Bookkeeper, saving time of, note 141. Books, subscriptions to, note 1431. Boulevards, note 69.

See also Street improvements, infra.

Branch line of railway, note 94.

See also Railroads, infra. Branch offices and stores, note 129. Breeding of live stock, note 120.

Brick, cost of manufacture, note 79. Bridges, construction of, note 67, Brokers, notes 26, 44.

"Bubble" Company, note 86.

Building and loan associations, note 112.

Buildings, notes 67, 69, 101, 128. alteration of, note 75.

purchase of adjoining, note 66. Burden of proof, notes 147, 152, 155, 156, 166, 167.

Burial crypts, sale of, note 66.
Business lot, note 66.

Canning season, note 141.

Capacity, note 3.

of ice plant, note 66.

Cash register, note 141.

Charitable and benevolent organizations, note 145.

Chattel mortgage, note 143.
Check, promise to deduct advances
and return balance, note 143.
Check, promise to pay, note 101.
Christian Science healing, notes 142,

165.

Claims, collection of, note 42.
Clerk, saving time of, note 141.
Club, baseball, subscription to, note
80.

Coke, future quality, note 141.
Collateral inducement, note 90.
Collection of claims, note 42.
Competition by seller, notes 124, 159.
See also Contests, infra.
Completion of buildings, note 128.
of railway, notes 94, 95.
of speedway, note 124.

of telegraph line, note 79. of subscriptions, note 79. See also Time, infra. Compounds, notes 3, 141. Compromise, assistance in securing, note 22.

Confidential relations, notes 22, 44. Consolidation of railways, notes 79, 143.

Construction costs, note 3.
Contests and prizes, note 113.

See also Competition, supra. Continuance of business, notes 141, 142.

Conveyances, notes 64-71.

See also Reconveyances, infra. Cooling machine, note 141.

Co-operative concerns, notes 79, 80, 142.

Copyrights, note 122.
Corn grinder, note 141.

Corporations, future formation of,

notes 68, 75, 83, 89, 159.

Correction of accounts, note 132. of settlement, note 117.

Cost of buildings or improvements, notes 3, 79, 128.

Cost of manufacturing patented de

vice, note 115.

Cotton, marketing of, note 142.
Cotton gin, note 88.

Coupons, maturity of, note 142.
Creamery, see Dairy, infra.

Credit, promise of, notes 132, 143.
Criminal representations, note 4.
Crops, notes 3, 42, 66, 78.

promise to pay from, note 101.
promise of advance for picking,
note 152.

Crypts, advance in price, note 66.
Cures, notes 3, 18.

Cuttings, future growth, note 141.
Dairy, notes 72, 79, 120, 124.
Dams, mill, note 123.

"Dealer's talk," notes 115, 141. See also "Puffing," infra. "Seller's talk," infra.

"Trade talk," infra.

Declines in market price, notes 140141.

Deeds, see Conveyances, supra.

Defects, promise to remedy, note 127. Deficiencies, promise to supply, note 127.

Demand, increase in, note 88.
Deposit, return of, note 66.
Depots, notes 67, 69, 94, 95, 151.
Director, medical, insurance company,
notes 88, 96, 97.

Directory, musicians,' note 49.
Discontinuance of suit, note 142.
Discount of commercial paper, notes
101, 141.

on purchases, note 80.

See also Rebates, infra. Diseases and cures, notes 3, 18. Dissatisfaction, see Satisfaction, infra.

Distillery, note 64.

Dividends, notes 79, 80, 81, 83, 86, 87, 88, 94.

from insurance, notes 104, 105,
107.

Donations, see Schools, infra.
Dower, note 66.

Draying business, note 141.
Drilling, see Wells, infra.
Drills and disks, note 141.

Drugs and compounds, notes 3, 141.
Dry goods business, note 79.
Easement, promise to grant, note 66.
Educational institutions, see Schools,
infra.

Electricity, notes 13, 142.

See also Lighting system, infra. Electric railway, see Street railway, infra.

Elevator, grain, note 83.

promise to complete, note 127. safety devices on, note 1431. Employment, promises of, notes 96

99.

Encumbrances and liens, notes 66, 101 132.

See also Judicial sales, infra. Encyclopedia, legal, note 130. Equity, special considerations, notes 54-61.

Evidence, notes 135, 146-152, 165, 166. Examiner, medical, notes 88, 96, 97. Exclusive rights of sale, note 125.

Funds, promise to obtain, note 142.
Furniture, notes 76, 77.

Gas, promise to supply, note 79.
Gas mains, note 67.

Ginning company, note 88.

Government mail, notes 142, 144.

Grain company, note 83.

drills and disks, note 141.
elevator, note 83.
seeds, note 66.

Grocery business, note 80.
Guarantee, promise to, note 142.

Harvesting machine, see Farm implements and machinery, supra.

Hauling outfit, note 3.
Hay, note 3.

Heating and plumbing system, note 127.

Heating plant, note 141.

Hedges, growth of, note 80.
Homestead laws, note 101.
Hotels, notes 22, 67, 76.

promise to enter hotel business,
note 100.

Husband and wife, note 100.
Ice machine, note 141.

Ice plant, capacity of, note 66. Implements and machinery, see Farm implements, supra.

notes 45, 51, 55, 67, 69, 154. cost of, see Costs, supra.

on leased premises, notes 75, 76. Income and profits, notes 63-65. Increases, in price, notes 141, 143.

See Value of corporate stock, infra. Indorsement of commercial paper, notes 83, 134, 135. Inducement, collateral, note 90. Injuries, personal, notes 96, 97, 117. Insolvent debtors, notes 101, 103, 117. Instalment bonds, note 79. Insurance, notes 104-107.

medical director or examiner, notes 88, 96, 97.

Interest, see Taxes and interest, infra.

Intoxicants, notes 41, 64, 65, 67.
Inventions and patents, note 115.
Irrigation, notes 42, 123.

See Waters, infra.

Jewelry, exclusive sales, note 125.
Jitney business, note 137.

Judicial sales, notes 22, 26, 44, 55, 56, 71, 143, 144.

Jury questions, note 165.

Knowledge, superior or intimate, notes 41-43, 87.

Leases, notes 13, 19, 22, 64, 75-78.
Legal effects, note 5.

Legal publications, note 130.

Liens, see Encumbrances and liens,

supra.

Life estate, note 66.

Lighting system or plant, notes 13,

141.

Liquor, see Intoxicants, supra. Livery business, profits in, note 64. Livery rig, note 142.

Live stock, notes 3, 18, 33, 83, 119, 120, 123, 135.

Loans, notes 21, 22, 86, 102.
Location of plank road, note 83.
Location of railroad, notes 94, 95.
Lots, resale of, note 48.

Lumber and building material, notes 3, 101, 141.

Machine shops, erection of, note 74.
Magazine, nature of, note 142.
Mail route or schedule, notes 142,
144.

Manufacturers, purpose of, note 142. Manufacturing plants and factories, notes 67, 69, 70, 79, 83.