We are of the opinion that the false statements made by the defendant of his intention should, under the circumstances of this case, be deemed to be a statement of a material, existing fact of which the court will lay hold for the purpose of defeating the wrong that would otherwise be consummated thereby.”
[323]. Butler v. Watkins, 13 Wall. 456; Rogers v. Virginia-Carolina Chemical Co., (C. C. A.) 149 Fed. 1; Sallies v. Johnson, 85 Conn. 77; McLaughlin v. Thomas, 86 Conn. 252; Olson v. Smith, 116 Minn. 430; Herndon v. Durham R. Co., 161 N. C. 650; Blackburn v. Morrison, 29 Okl. 510 Accord.
Grubb v. Milan, 249 Ill. 456; Murray v. Smith, 42 Ill. App. 548; Chambers v. Mitchell, 123 Ill. App. 595; Younger v. Hoge, 211 Mo. 444 Contra.
In Commonwealth v. Althause, 207 Mass. 32, 47–49, Loring, J., says: “As a general proposition of law apart from statutes making it a crime to obtain property by a false pretence, it would seem that a man’s present intention as to a future act is a fact. Edgington v. Fitzmaurice, 29 Ch. D. 459. Swift v. Rounds, 19 R. I. 527. In the first of these two cases (Edgington v. Fitzmaurice) Bowen, L. J., said, at p. 483: ‘The state of a man’s mind is as much a fact as the state of his digestion.’ And Chapman, C. J., in Commonwealth v. Walker, 108 Mass. 309, 312, said: ‘A man’s intention is a matter of fact, and may be proved as such....’
But in the case at bar the presiding judge went beyond any decided case in the explanation which he gave of the difference between the representation of a person’s present intention as to a future act and an assurance or promise that the future act shall be done. For the purpose of illustrating the essential difference between the two he put as an example of obtaining property by a false pretence a case which is not obtaining property by a false pretence. In effect he told the jury that if A buys property intending not to pay for it he obtains that property by a false pretence. In that case A makes no representation at all. All that he does is to make a promise, and a promise is not a representation of a fact. It has been sought to make out that in legal contemplation a promise with an intention not to perform is a false pretence because a promise to do a thing of necessity implies a present intention to do it, and therefore whenever you have a promise coupled with an intent not to perform you have an implied false representation of an intention to do the act which the defendant promised to do and so a false pretence. And this finds some apparent support in Swift v. Rounds, 19 R. I. 527. In that case it was held that where a defendant buys property intending not to pay for it he is liable in an action of deceit because he impliedly represents that he intends to pay for it by the act of buying. It may be doubted whether the making of a promise implies of necessity in all cases a present intention to perform that promise. Upon that question we do not find it necessary to express an opinion. For however that may be, the fraud of obtaining property by buying it intending not to pay for it is not, as matter of construction of the statute creating it, the crime of obtaining property by a false pretence.... It is evident that the fraud (which by enacting that statute the Legislature intended to make a crime) was obtaining the property of another by a false statement of a fact; and it is equally evident that in enacting it the Legislature did not have in mind the fraud of buying goods not intending to pay for them. Both are frauds but they are not the same fraud. In our opinion it was the former alone which the Legislature had in mind in making it a crime to obtain property by a false pretence.”
As to whether intention at the time of the contract or at the time of delivery of the goods is to be regarded, see In re Levi, 148 Fed. 654; Whitten v. Fitzwater, 129 N. Y. 626.
[324]. See Gardner v. State, 4 Ala. App. 131; Syracuse Knitting Co. v. Blanchard, 69 N. H. 447.
[325]. Statement abridged. Part of opinion omitted.
[326]. As to “promissory representations,” see also Sawyer v. Prickett, 19 Wall. 146; Sallies v. Johnson, 85 Conn. 77; Carter v. Orne, 112 Me. 365; Pedrick v. Porter, 5 All. 324; Pile v. Bright, 156 Mo. App. 301.
Known impossible prophecy by one having superior knowledge, see Murray v. Tolman, 162 Ill. 417; French v. Ryan, 104 Mich. 625; Hedin v. Minneapolis Institute, 62 Minn. 146.