fendant entertained the then present intention of breaking them and thereby deceived the defendant and induced him to enter into a contract which, but for such promises, he I would not have entered into. For this reason the plaintiff might successfully have interposed a demurrer to the answer; upon sustaining it, the court doubtless would have permitted an amendment curing the defective statement. But a motion to strike out a defectively stated defense, and thereby cut the defendant off from all possibility of getting before the court a perfect defense, is not the appropriate remedy.

As is said by the court in Germofert Mfg. Co. v. Castles, 97 S. C. 389, 81 S. E. 665: "It cannot be successfully contended that the allegations of the defense which the plaintiffs made a motion to strike out have no connection with, nor effect upon, the plaintiffs' cause of action."

The worst that can be said about them is that they constitute a defective statement of what may be a complete defense; the remedy to correct which is a demurrer and not a motion to strike; they certainly are not irrelevant or redundant. As is said of sham and frivolous pleading, in the case of Boylston v. Crews, 2 S. C. 422:

"It is not the purpose of such a motion to enable the plaintiff to take advantage of defects or inadvertences in the form of pleading. To meet the charge of frivolousness [and I may add irrelevancy] the

pleading must be of that character in its entire scope and bearing, and not merely through a formal defect that might be cured by amendment."

"Any insufficiency of the allegations of a plea, which manifestly are not irrelevant or frivolous, should be availed of by demurrer and not by motion to strike." Jefferson County Sav. Bank v. Interstate Sav. Bank, 5 Ala. App. 363, 59 So. 348.

In American Confectionery Co. v. North British & Mercantile Ins. Co. (D. C.) 199 Fed. 195, it is held that if the defendant's plea fails to show a substantial cause of defense, the plaintiff's remedy is by demurrer, and not by motion to strike.

In Sloss-Sheffield Steel & I. Co. v. Webb, 184 Ala. 452, 63 So. 518, it is held: "Where a plea could be amended so as to properly state a defense without a departure, plaintiff's remedy was by demurrer to the plea and not by motion to strike."

A merely defective plea, wanting in fullness or otherwise subject to demurrer cannot be tested by a motion to strike from the files. Hammond v. A. Vetsburg Co. 56 Fla. 369, 48 So. 419; Southern Home Ins. Co. v. Putnal, 57 Fla. 199, 49 So. 922.

The judgment of this court is that the order appealed from be reversed, and that the case be remanded to the Circuit Court, with leave to the defendant to apply for such amendment of his answer as he may be advised.

Gary, Ch. J., and Watts, Blease, and Stabler, JJ., concur.

I. Introduction, 47.

II. General rule, 49.

intention of performance, 63.

VII. Applications:

a. General statement, 94.

e. Leases, 105.

IX. Statutes, 170.

X. Word index, 172.

I. Introduction.

Fraud, it has been said,1 assumes, so many different hues and forms that courts are compelled to content themselves with comparatively few general rules for its discovery and defeat, and allow the facts and circumstances peculiar to each case to bear heavily on the conscience and judgment of the court or jury in determining its presence or absence. Indeed, it has been suggested 2 that no comprehensive definition of fraud is desirable; that the common law not only gives no definition of fraud, but perhaps asserts as a principle that there shall be no definition of it; that "if there were a technical definition of fraud, and everything must come within the scope of its words before the law could deal with it as fraud, the very definition would give to the crafty just what they wanted, for it would tell them precisely how to avoid the grasp of the law."

These views are well illustrated in the class of cases under consideration, for it will be found that, while the authorities which lay down the general rule on the present subject are so nu

1 12 R. C. L. 229.

2 Parsons, Contr. 769.

"Fraud is kaleidoscopic, infinite. Fraud being infinite and taking on protean form at will, were courts to cramp themselves by defining it with a hard-and-fast definition, their jurisdiction would be cunningly circumvented at once by new schemes beyond the definition. Messieurs, the fraud fea

merous that it would seem there could be no question as to its soundness and general applicability, yet, when the exceptions thereto are considered, it will be found that the rule is greatly limited in its scope and is of much less practical application than it would at first seem. When the courts have come to apply the doctrine that fraud cannot be predicated on promissory statements to a case of actual fraudulent intent, in which the statement was of a nature such as is ordinarily relied upon in business transactions, they have usually found some exception to the doctrine, and granted relief.

It is the purpose of the annotation to deal primarily with the principles involved in the above subject, and not with specific circumstances, except as the latter serve to explain or clarify the rules. But it has been found in many instances that the rules, as laid down by the courts, are not clear unless the circumstances under which they were declared are indicated; and for this reason, and also for the reason that a statement of the various applications seems practically desirable, sors, would like nothing half so well as for courts to say they would go thus far and no further in its pursuit. . . Accordingly definitions of fraud are, of set purpose, left general and flexible, and thereto courts match their astuteness against the versatile inventions of fraud doers." Stonemets v. Head (1913) 248 Mo. 243, 154 S. W. 108.

the particular classes of cases in which the rules have been applied are, to a large extent, set out. But the annotation should not be regarded as necessarily exhaustive on particular sets of facts, because other cases involving similar circumstances may have been decided on other principles, without consideration of the subject under annotation.

It is not always feasible to trace clearly the boundary of the field in which the statement may be regarded as one of past or existing fact, as distinguished from promises or representations as to a future event. For example, statements of value, of the yield or the productivity, of land, of the amount which will be realized from a crop or timber on land, of the probability of effecting a cure of a disease or injury, costs of construction, and other matters, may be regarded from one point of view as statements relating to present conditions rather than future events; and the annotation should not be relied upon for an exhaustive collection of cases of this

3 See, for example, Bickel v. Munger (1912) 20 Cal. App. 633, 129 Pac. 958, in which a representation as to what a ranch would produce in the future was regarded as a statement of opinion.

And a representation by the owner to a prospective purchaser of timberland that there is enough wood on the land to pay the purchase price may be a mere expression of opinion, and not amount to actionable fraud, though false, entitling the purchaser to rescind the contract. See, for example, Hall v. Brown (1915) 126 Md. 169, 94 Atl. 530. The same may be true regarding expressions of opinion as to the amount of hay or quantity of wood which a purchaser of land would obtain therefrom. See, for example, Mooney v. Miller (1869) 102 Mass. 217.

It will be observed that such representations as that in Sieveking v. Litzler (1869) 31 Ind. 13, as to the amount of lumber which a sawmill would cut in a day, made by the seller to induce one to purchase an interest therein, are representations of fact as to the capacity of the mill.

It has been pointed out that the statement that a particular article will bear a certain strain or sustain a cer

kind. Generally, representations as to value and other statements of the nature indicated are not at all primarily of a promissory nature, and are not within the scope of the annotation, although individual cases may consider the present subject and for that reason be included. But it would seem clear, for example, that if a statement is made that land will produce certain crops, or that the standing timber on realty sold will yield a certain quantity of lumber, the courts ought not to dispose of the question whether fraud may be predicated on such representations merely by application of the rules relative to promissory statements. Representations of this kind relate rather to existing qualities or matters of fact, than to promises or statements of future events. This does not necessarily mean, however, that fraud may be predicated on them, for they may be assigned possibly to that large class of representations which should be regarded merely as expressions of opinion.3

The annotation does not include tain weight, that a machine will do certain work, that land will produce certain crops, or the like, although future in form, refers to the suitability or capacity of the article or machine for the proposed purpose, or the character or fertility of the soil or the possession of the attributes which will produce the stated results, and, therefore, amounts to a statement of an existing fact, and not a mere expression of a future promise or expectation of a future event, which cannot be made the ground of an action for fraud and deceit. Keithley v. Mutual L. Ins. Co. (1916) 271 Ill. 584, 111 N. E. 503.

By way of illustration, attention is called, also, to Paxton-Eckman Chemical Co. v. Mundell (1916) 62 Ind. App. 45, 112 N. E. 546, in which the court said that mere expressions of opinion concerning the value, utility, future use, and the like, of property, do not as a general rule constitute actionable fraud; but held that the allegations in question were as to existing facts, being to the effect that the defendant had by research and experiment compounded a drug which would prevent hog cholera. See also Merchants Nat. Bank v. Nees (1916) 62 Ind. App. 290, 110 N. E. 73, 112 N. E. 904,

criminal cases, nor cases on the question of the effect of misrepresentation as to the legal effect of a transaction; and the same is true as to that large class of decisions in which the representation is that the purchaser of property intends to, or will, pay for it; this class not being covered (although individual cases may be referred to herein), for the reason that it is a somewhat distinct group in which the representation is frequently only an implied one, and the concluwhich approves the same doctrine and holds that the representations in this instance were not as to an existing fact, but were merely an expression of opinion, where the same related to the performance of an outfit for hauling gravel, consisting of a series of wagons (which were to be manufactured) and a traction engine.

Questions as to alleged fraudulent representations by physicians or medical institutions, that injuries or diseases from which one is suffering are curable, and that he will be cured if he submits to medical treatment by the representor, as presented, for example, in Hedin v. Minneapolis Medical & S. Inst. (1895) 62 Min. 146, 35 L.R.A. 417, 54 Am. St. Rep. 628, 64 N. W. 158, and Haarstad v. Gates (1909) 107 Minn. 565, 119 N. W. 390, are merely a part of the general question. as to whether expressions of opinion may constitute fraud, and may be regarded as relating primarily to an existing condition, rather than to a future event.

4 It may be observed that the rule in civil actions, as shown in the present annotation, seems to be in accord with that in criminal cases, to the effect that, to constitute the offense of obtaining money or goods by false pretenses, the pretense must relate to a past event or an existing fact, as distinguished from something to take place in the future. See 11 R. C. L. pp. 831, 832. This line of cases, which are of interest, but are beyond the scope of the annotation, is represented by Meacham v. State (1910) 7 Ga. App. 713, 68 S. E. 52, which was a criminal prosecution for swindling, in which it is said that one cannot be defrauded by the violation of a promise to perform an act in the future; that the deceitful means or artful practice by which one is defrauded and cheated 51 A.L.R.-4.

sion may depend on insolvency or other matters peculiar to representations of that nature. ®

II. General rule.

The general rule, which is supported by numerous decisions in almost all jurisdictions, is that fraud must relate to a present or pre-existing fact, and cannot ordinarily be predicated on unfulfilled promises or statements as to future events. There are various reasons for this general rule, applicamust have relation to an existing fact or a past event; that ordinarily one who is induced to act by the promise of another to do a particular act in the future acts upon the promise, and not upon the false representation of facts; and that, while violation of the promise is immoral, it is not a criminal offense.

5 See, for example, Hubbard v. McLean (1902) 115 Wis. 9, 90 N. W. 1077, in which the court recognized the general rule that a false representation, to be actionable, must relate to a past or present state of facts and not to mere nonperformance of a promise looking to the future; but held that the rule did not apply in this instance, in view of the fact that the misrepresentation was as to the legal effect of the giving of notes and a mortgage, the defendant, an attorney, representing to the plaintiff that he would incur no personal liability in so doing. As to attorneys, see note 111, infra. As to notes, see notes 132-136, and cross references therein.

6 As an example of this class, attention is called to People ex rel. Ellis v. Healy (1889) 128 III. 9, 15 Am. St. Rep. 90, 20 N. E. 692, in which the court took the view that, where the false representations are made the basis of the action, they must relate to some past or existing fact, although, if the action is brought by the seller to rescind the sale, he may do so on the ground that the purchase of goods was made by one who never intended to pay for them, and that this was a fraud, even in the absence of express fraudulent representations or false pretenses.

See note 103, infra.

7 United States.-Sawyer v. Prickett (1873) 19 Wall. 146, 22 L. ed. 105; Fenwick v. Grimes (1838) 5 Cranch, C. C. 439, Fed. Cas. No. 4,733; Banque