delivered the option of the court.
The gravamen of the charge in this complaint is that defendant Strong falsely and deceitfully represented that he would perform the acts and things that he agreed to do, for the purpose of deceiving plaintiff, and inducing him to enter into the contract of October 12th; and that such promises and representations were fraudulent in that they were made with the intention at the time not to fulfill them. In other *110words, the theory of the case is that a promise to do a future act, if accompanied with an intention not to perform, constitutes an actionable fraud and will justify a court of equity in canceling the agreement procured thereby. This position is not tenable. It is well settled that to constitute an actionable fraud, the representation must not only be false, but must relate to a past or existing fact; and that fraud cannot be predicated upon a false representation as to a matter of intention, or upon an unfulfilled promise to perform an act, made with the intention not to perform, although such representation or promise influenced the complaining party to enter into the contract or transaction.
“As distinguished from the false rej>resentation of a fact, the false representation as to a matter of intention, riot amounting to a matter of fact, though it may have influenced a transaction, is not a fraud at law.” Kerr on Fraud and Mistake, 88. In Bigelow on Estoppel, 481, the rule is stated as follows:
“ The representation or concealment must, also, in all ordinary cases, have reference to a present or past state' of things; for if a party make a representation concerning something in the future, it must generally be a statement of intention or opinion, uncertain to the knowledge of both parties, or it will come to a contract, with the peculiar consequences of a contract.” Gage v. Lewis, 68 Ill. 604; Gallagher v. Brunel, 6 Cowen, 346; Long v. Woodman, 58 Me. 49 ; Fouty v. Fouty, 34 Ind. 433; Bethell v. Bethell, 92 Ind. 318.
The representations constituting the fraud relied on in this case were all in reference to future performance; and although it is admitted that they were unfulfilled, and made with an intention on the part of Strong not to perform, whatever may be said of Ms conduct from a moral point of view, they do not, as we have seen, afford a ground for the relief sought; nor, upon the averments in this complaint can any other relief be granted. The judgment of the court below is therefore affirmed.
Affirmed.