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the brokerage business, to be conducted along the same lines as that of the employer, that they were both personally to give their attention to the business, and desired such customer to contribute a certain amount of money and become a silent partner in the business, the person to whom these representations were made paying over the sum of money named, in reliance on the representations, whereas the representations were false and were made for the purpose of defrauding the representee of his money.

And in Deyo v. Hudson (1919) 225 N. Y. 602, 122 N. E. 635, an action to recover damages for deceit brought by law partners against a stockbroker on the ground of a false promise to notify them in case a member of a firm who had previously embezzled and lost money in speculation, but who was retained on the stockbroker's promise, continued his speculations, the court said that the inference was permissible that the manager of the brokerage office uttered an unqualified falsehood when he stated that he would notify the plaintiffs if the member resumed trading with the broker; that he uttered it with a fraudulent intent, and the plaintiffs acted thereunder; that, if injury resulted with which the broker might be charged, the action could be maintained. The court regarded the false promise as a statement of a material, existing fact, because it falsely represented the state of the promisor's mind; in other words, it was a fraudulent representation of the existing intent of the promisor to conceal the fact, in case the member of the firm again became a customer of the brokerage house. In this instance there was also a false assurance that resumption of trading had not been begun and an intentional concealment of this fact; but, apart from this consideration, the same result would apparently have been reached.

In Bench v. Sheldon (1852) 14 Barb. (N. Y.) 66, where the defendant, who knew that a flock of sheep which had been lost by the plaintiff had been found, after inquiring of the plaintiff as to whether he had found them, and receiving the reply that he had not, stated that "he supposed he never would find them," thereby inducing a sale of the property to the defendant at a nominal price, it was held that an action for fraud would lie.

It was held in Hill v. Chamberlain (1901) 64 App. Div. 609, 71 N. Y. Supp. 639, affirmed without opinion in (1902) 170 N. Y. 595, 63 N. E. 1117, that an action would lie for false and fraudulent representations, inducing the owner of mortgaged property to refrain from bidding on the property at foreclosure sale, that, if the owner would permit the party making the representations to become the purchaser, he would leave part of it to such owner free and clear of encumbrance and would hold the balance as trustee for the owner and protect his interest, such representations being made in furtherance of a fraudulent scheme to obtain the property for less than its value. Though the promises and agreements were not sufficiently definite to constitute a valid contract, the court held that the parties making them would be liable for damages.

And the rule that representations of purpose and intention, whether express or necessarily implied which constitute a material fact inducing another to act, constitute a fraud affecting the validity of a contract induced thereby, was applied in Moore v. Moore (1916) 94 Misc. 370, 157 N. Y. Supp. 819, in holding that the court would annul a marriage on the ground of fraud where, at the time the defendant married the plaintiff, it appeared that he intended at once to abandon her, and did so, and that he never intended to fulfil his marital duties.

In Stoltz v. Reynolds (1918) 169 N. Y. Supp. 170, it is said that an action for deceit does not lie for a statement of something which is to occur in the future, since that cannot be a representation of an existing fact; but that the courts have allowed recovery, as upon a statement of an existing fact, in cases where it is shown that the statement relied upon was a representation of a then present intention, contrary to what was at the time the real intention.

In Fowler-Curtis Co. v. Dean (1922) 203 App. Div. 317, 196 N. Y. Supp. 750, it is said (per Hinman, J.) that a misrepresentation of one's intention at the time is a misrepresentation of an existing fact. The case was one of alleged misrepresentation of an intent on the part of a corporation to enter into a contract.

As to proof of intention so as to render the above rule applicable, see VIII. infra.

trine of some of these earlier decisions has evidently been discarded.27 It has been held in this state that fraud is sufficiently charged if the allegations in the complaint describe a case where a defendant has fraudulently and positively, as with personal knowledge, stated that something is to be done, when he knows that it is not to be

27 See cases cited supra, under notes 14 and 26, supra.

23 Eichorn v. Serlis & Co. (1922) 118 Misc. 256, 192 N. Y. Supp. 797, applying this doctrine to a case where a widow was induced to purchase stock in an oil company on the representation that she would receive a certain income per month as dividends, instead of the ordinary savings bank interest which she was receiving.

29 See Buhler v. Loftus (Mont.) under note 21, supra.

In Abbott v. Abbott (1886) 18 Neb: 503, 26 N. W. 361, the court said: "While fraud cannot be predicated upon a mere promise not performed, yet where a party, through misrepresentation and fraud, has gained an advantage in the action, a court of equity, in a proper case, will grant appropriate relief; and this, even if the advantage was obtained by fraudulent promises in the nature of the assertion of facts which there was no intention to perform; that is, where the representation is that of a fact in the future, and not a mere promise, and it is relied upon, and turns out to be false, the remedies of the injured party are the same as where fraudulent misrepresentations are made in regard to existing facts." The case was one where an action for alienation of affections was dismissed on a promise of conveyance of property, which was not performed, and the plaintiff sought reinstatement of the case (which was granted), alleging failure to comply with the conditions upon which it was dismissed. The case is cited in Farmers' Co-op. Grain Co. v. Startzer (1924) 112 Neb. 19, 198 N. W. 170, as holding that representation of a fact in the future, and not a mere promise which has been acted upon and turns out to be false, will entitle the injured party to the same remedies as fraudulent representations of an existing fact. The Startzer Case was one in which it was alleged that the false representations (as to building

done and that his representations are false.28

In several cases the courts have used the expression "representation of a fact in the future;" 29 but this seems to refer, if it is to be intelligible at all, to a misrepresentation of a present intention to perform an act in the future, or of events to take place in the of a grain elevator, payment of a higher price for grain to subscribers, and representations as to dividends from stock, inducing subscription) were made without intention of performance, and for the purpose of defrauding the subscriber; and the court followed the Abbott Case (Neb.) supra.

It is said in Tauner v. Clark (1892) 13 Ky. L. Rep. 879, 922 (abstract), that while a statement of intention merely cannot be a misrepresentation amounting to fraud, yet the statement of a matter in the future, if affirmed as a fact, may, as well as a statement of a fact as existing at present, amount to a fraudulent representation. This doctrine is stated in a case involving the sale of lots on an alleged representation that certain improvements would be made, the court taking the view that, if the vendors began improvements merely for the purpose of deceiving the public, and not with the intention of completing them, there was a fraudulent representation of existing facts.

Also 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, the case being one involving membership in a building and loan association. See note 112, infra. And the same doctrine is approved in Hartford L. Ins. Co. v. Hope (1907) 40 Ind. App. 354, 81 N. E. 595, 1088, an insurance case. See note 107, infra. In Sioux City Tire & Mfg. Co. v. Harris (1922) Iowa, - 190 N. W. 142, it is said that statements concerning future earnings or dividends made with the intention that the same shall be believed as facts are not in the category of mere opinions, but constitute representations of fact within the legal concept of fraud. The case was one of alleged misrepresentations inducing purchase of stock. See note 88, infra.

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future as a result of present conditions which are misrepresented.

A distinction has been made between an affirmative intention not to keep one's promises, which is an actionable fraud, and the mere absence of an intention to perform them, which is not of itself actionable; 30 but this distinction appears rather technical and refined, and not seemingly of practical importance except where special circumstances may call for its application. Most of the cases do not make any such distinction, and generally in the opinions, when the court uses such an expression as "promises made without intention of performance," it evidently means promises made with an intention of nonperformance. This is true also of the use of these terms in the present annotation, although it may be conceded that under certain circumstances, as in case of jury find

30 McCusker v. Geiger (1907) 195 Mass. 46, 80 N. E. 648. This case came within the latter class, the finding being merely that the promises were made "without the intention" of performing them. The court cites Chamberlain v. Hoogs (1854) 1

Gray (Mass.) 172, in which the alleged fraud consisted (in part) of the contraction of a debt, "having no intention to pay the same," and in which the court said: "Not intending, or having no intention, to do a certain act, is substantially different from intending, or having an intention, not to do it. The former expression imports the mere nonexistence of an intention to do the act; the latter imports the actual existence of an intention not to do it. In the present case, the former expression is consistent with utter thoughtlessness and absence of all intention about payment; the latter is consistent only with a purpose not to pay." The court also cites Watson v. Silsby (1896) 166 Mass. 57, 43 N. E. 1117, a case involving a purchase of goods with an alleged intention not to pay for them.

31 Where the representations which it was alleged were made with no intention of performance were not made to the complainant, it was held in Church v. Swetland (1917) 156 C. C. A. 69, 243 Fed. 289, appeal dismissed in (1919) 249 U. S. 579, 63 L. ed. 785, 39 Sup. Ct. Rep. 256, that they were not

ings, the expressions may possibly not be regarded as synonymous.

The promises must, of course, be made to the party who claims injury, and not to someone else, or they are not a fraud on the former.31 And if there is no consideration for the fraudulent promise, and the promisee is not damaged thereby, but in reliance on the same is induced only to perform what he is legally at that time bound to perform, he may not predicate fraud as a defense on such promise or representation, however deceitful it may have been.32 It has been held, also, that if the written contract, to the promisee's knowledge, reveals the falsity of the promises made, the promisee cannot invoke the rule that fraud may be predicated on promises made without intention of performance, in order to rescind the contract.33

a fraud on him, and that it was, therefore, unnecessary to determine whether the doctrine was a proper one that fraud may be predicated on a promise made without the intention of performance.

32 Thus, in Overdeer v. Wiley (1857) 30 Ala. 709, it was held that the defense of fraud was not available to the principal debtors in an action on a note given by them, for a debt then due, which they contended was signed by them on the fraudulent promise of the creditor, made without any intention of complying therewith, to supply the debtors for a certain time with goods, so as to enable them to continue their business and pay the note. The court held that the promise was gratuitous, without consideration, and that the misrepresentation was not prejudicial, since the debtors merely promised to pay at a future day a debt already due.

33 In Nelson v. Berkner (1918) 139 Minn. 301, 166 N. W. 347, it is said that evidence of fraudulent promissory representations made with no intention of performance, solely for the purpose of inducing another to enter a contract, may be proven, though at variance with the written contract; but that such representations are not ground for rescission, when the written contract, to the promisee's knowledge, reveals the falsity of the promise, since he cannot then be said to

Minority view.

There are a number of cases representing what appears to be the minórity view, to the effect that fraud may not be predicated on an unfulfilled promise, even though, at the time it have relied thereon in entering into the contract. The case was one of alleged promissory representation by the vendor to repurchase the farm if the vendee was dissatisfied. By way of illustration of the above rule, the court supposed a case of a written contract for the sale of a horse, the age of which was stated as ten years, it being said that the buyer, who knew that the contract so read when he signed it, could not rescind on the claim that he was induced to enter into the agreement by the seller's falsely representing that the horse was only three years of age, for if the misrepresentations were conceded, the contract itself informed the buyer that it was untrue.

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Connecticut. See Kennedy v. Howell (1850) 20 Conn. 349, apparently overruled on this point by later decisions. See note 14, supra.

Georgia. See Thomson v. McLaughlin (1913) 13 Ga. App. 334, 79 S. E. 182, infra, which seems contra to cases in this state cited under note 14, supra; also La Grange Grocery Co. v. Young & G. Coffee Co. (1923) 30 Ga. App. 303, 117 S. E. 673, which turns on a question of pleading.

Illinois. Gage v. Lewis (1873) 68 Ill. 604; People ex rel. Ellis v. Healy (1889) 128 Ill. 9, 15 Am. St. Rep. 90, 20 N. E. 692; Kitson v. Farwell (1890) 132 Ill. 327, 23 N. E. 1024; Haenni v. Bleisch (1893) 146 Ill. 262, 34 N. E. 153; Murphy v. Murphy (1901) 189 Ill. 360, 59 N. E. 796; Miller v. Sutliff (1909) 241 Ill. 521, 24 L.R.A. (N.S.) 735, 89 N. E. 651; Grubb v. Milan

was made, there was an intention of nonperformance, or, as frequently stated, even though the promise was made without an intention of performance.34 It will be observed that, even in the same state, there seem often to

(1911) 249 Ill. 456, 94 N. E. 927; Keithley v. Mutual L. Ins. Co. (1916) 271 Ill. 594, 111 N. E. 505; Luttrell v. Wyatt (1922) 305 Ill. 274, 137 N. E. 95; Murray v. Smith (1891) 42 Ill. App. 548; Phelan v. Kuhn (1893) 51 Ill. App. 644; Chambers v. Mitchell (1905) 123 Ill. App. 595; Van Sickle v. Harmeyer (1912) 172 Ill. App. 218; Ensign v. Lehmann (1915) 192 Ill. App. 578; Ingersoll v. Joseph Brown & Co. (1917) 205 Ill. App. 537. See also Gray v. Suspension Car Truck Mfg. Co. (1889) 127 Ill. 187, 19 N. E. 874, and Commercial Mut. Acci. Co. v. Bates (1898) 176 Ill. 194, 52 N. E. 49.

Indiana. Clem v. Newcastle & D. R. Co. (1857) 9 Ind. 488, 68 Am. Dec. 653; Noble v. State (1872) 39 Ind. 352; Hayes v. Burkam (1875) 51 Ind. 130; Burt v. Bowles (1879) 69 Ind. 1; Bethell v. Bethell (1883) 92 Ind. 318; Balue v. Taylor (1894) 136 Ind. 368, 36 N. E. 269 (recognizing rule); Robinson v. Reinhart (1894) 137 Ind. 674, 36 N. E. 519 (same); State ex rel. Creighton v. Carlisle (1899) 21 Ind. App. 438, 52 N. E. 711; Ayres v. Blevins (1901) 28 Ind. App. 101, 62 N. E. 305; Records v. Smith (1920) 72 Ind. App. 618, 126 N. E. 335. Contra, see Webster v. Adams (1923) 79 Ind. App. 261, 137 N. E. 883; also Basye v. Basye (1899) 152 Ind. 172, 52 N. E. 797 (which is set out in annotation in 29 A.L.R. on p. 216).

Massachusetts. Knowlton v. Keenan (1888) 146 Mass. 86, 4 Am. St. Rep. 282, 15 N. E. 127; Dawe v. Morris (1889) 149 Mass. 188, 4 L.R.A. 158, 14 Am. St. Rep. 404, 21 N. E. 313. (Contra, see cases from this state under note 14, supra.)

Missouri.-Younger v. Hoge (1908) 211 Mo. 444, 18 L.R.A. (N.S.) 94, 111 S. W. 20; Metropolitan Paving Co. v. Brown-Crummer Invest. Co. (1925) 309 Mo. 638, 274 S. W. 815; Missouri Loan & Invest. Co. v. Federal Trust Co. (1913) 175 Mo. App. 646, 158 S. W. 111; Shoup v. Tanner Buick Co. (1922) 211 Mo. App. 480, 245 S. W. 364. See also Bullock v. Wooldridge (1890) 42 Mo. App. 356. (For earlier decisions contra, see note 14, supra.)

New York. (These decisions are

be conflicting decisions, and that in a number of the states in which there are decisions supporting the minority view indicated, there are also cases apparently no longer authority on this. point, in view of the later cases cited under note 14, supra.) Gallager v. Brunel (1826) 6 Cow. 346; Ex parte Fisher (1836) 18 Wend. 608; Gray v. Palmer (1864) 2 Robt. 500, affirmed without opinion in (1869) 41 N. Y. 620; Closius v. Reiners (1897) 13 App. Div. 163, 43 N. Y. Supp. 297. See also Farrington v. Bullard (1863) 40 Barb. 512.

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Ohio. Smith v. Bowler (1857) 1 Disney, 520, affirmed in (1858) 2 Disney, 153. Contra, American Hosiery

Co. v. Baker (1899) 18 Ohio C. C. 604, 10 Ohio C. D. 219.

Pennsylvania. - Lowry Nat. Bank v. Hazard (1909) 223 Pa. 520, 72 Atl. 889 (dictum) note 82, infra; Miller v. Fulmer (1904) 25 Pa. Super. Ct. 106. Tennessee. Farrar v. Bridges (1842) 3 Humph. 566; A. Landreth Co. v. Schevenel (1899) 102 Tenn. 486, 52 S. W. 148.

Vermont.

Vt.

Hunt v. Lewis (1914) 87 Vt. 528, 90 Atl. 578, Ann. Cas. 1916C, 170; Girard v. Jerry (1921) 95 Vt. 129, 113 Atl. 533; La Croix v. Eaton (1925). 133 Atl. 745. See also Best v. Smith (1882) 54 Vt. 617. West Virginia. Love v. Teter (1884) 24 W. Va. 741. Contra, see Martin v. South Bluefield Land Co. (1917) 81 W. Va. 62, 94 S. E. 493.

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Wisconsin. See Tufts v. Weinfeld (1894) 88 Wis. 647, 60 N. W. 992; Horton v. Lee (1900) 106 Wis. 442, 82 N. W. 360 (dictum); Jeleniewski v. Eck (1921) 175 Wis. 497, 185 N. W. 540 (question referred to, but not decided); Legler v. Tyler (1924) 184 Wis. 238, 199 N. W. 149.

England. - See Feret v. Hill (1854) 15 C. B. 207, 139 Eng. Reprint, 400 (misrepresentation by lessee of use to be made of leased premises).

35 The question seems still undetermined in Wisconsin, where there appears to be authority in support of both the minority and the majority rules.

In Jeleniewski v. Eck (1921) 175 Wis. 497, 185 N. W. 540, where the lessor of a building represented that it would be ready for occupancy by the lessee on a certain date, and it was found that the representations were made for the purpose of deceiving the lessee, without intention by the lessor

which hold the contrary doctrine, and in some states the question seems still to be unsettled.35 According to these cases, even if at the time when the

to comply with the promise, the court recognized the divergence of authority on the question whether a promise made without intention of fulfilment may constitute fraud; and stated that, although the question was not there discussed, the case of Tufts v. Weinfeld (Wis.) supra, tended to support the view of the trial court, which was that the representations relied on were mere expressions of opinion or intent to do something in the future, and so could not constitute actionable fraud. The court, however, left the question undecided, holding that in any event there could be recovery for breach of contract. And it is intimated that the Tufts Case might not be followed, the court saying that, although it is elementary that mere broken promises do not constitute actionable fraud, it is not so clear that an action for fraud may not be predicated upon a false statement of present intent, which is material, made with intent to deceive, and relied on by the other parties; that there is much authority for the view that a condition of mind is as much a fact as a condition of the body, although more difficult to prove; and that, therefore, a misstatement of a person's mind is a misstatement of fact.

In Horton v. Lee (1900) 106 Wis. 439, 82 N. W. 360, the court makes the statement that a false representation as to future matters, or a promise to do an act in the future which the promisor does not intend to perform, will not avoid a sale on the ground of fraud-citing as authority Patterson v. Wright (1885) 64 Wis. 289, 25 N. W. 10; but this statement is in the nature of dictum, the case being one of alleged misrepresentations of value made on an exchange of property.

The question whether a promise made without intention of performance may constitute a cause of action for fraud, according to the Wisconsin court, seems still in doubt in that state, notwithstanding the decision in Legler v. Tyler (Wis.) supra, which appears to be an extreme case, unless the court intended to follow the minority rule, that actionable fraud cannot be predicated on promises to be performed in the future even if they are made without intention of perform

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