dissenting.
This was an action for deceit. The facts are substantially the same as in People v. Jacobs, 72 Ill. App. 286, where they are stated clearly and at length. There is no material difference in the evidence between that case, as it is stated in the opinion, and the one now presented.
The question was submitted to the jury, whether the contract of June 8, 1893, was signed on that day, as claimed by appellant, or in August following, as testified by appellee. The jury found specially that it was not signed June 8th. But this finding is upon evidence almost identical with that before the other branch of this court in the criminal case. It was there said: “We are of opinion that there is a decided preponderance of evidence that the contract of date June 8, 1893, was signed on the day of its date.” 1
The fraud and deceit charged in the declaration are that defendant was a man of small means; that he represented that one hieufeld was a man of large wealth and means, the owner of the house he lived in at Chicago^ worth $20,-000, and of a factory at Chicago worth $60,000; and that he, FTeufeld, would contribute $25,000 in cash to the new enterprise at its beginning, and that the defendant Jacobs would payin$12,500; and that, confiding in these statements, appellee paid in $5,000; whereas, in fact, Heufeld did not own said property, and did not “promise or intend to pay” in $25,000, nor did defendant intend to pay in $12,500, as he at the time well knew, and that the plaintiff was thus deceived.
Appellee subsequently drew out $1,000, which was returned to her by appellant, leaving the amount of her investment $4,000.
The allegation in the declaration that appellant was a man of small means, and that, desiring- to induce appellee to invest $5,000 in the enterprise, he wrongfully, intending to deceive and defraud, falsely, deceitfully and fraudulently represented that Neufeld was a man of large wealth and means, the owner of the house he lived in at Chicago worth $20,000, and of a factory in Chicago worth $60,000, charges a false representation as to existing facts, and it is the only such allegation in the declaration. It is alleged that the representations were made on or abour the 15th day of June, 1893. If the contract of June 8th was actually signed on that day, and in my opinion the evidence that it was so signed decidedly preponderates, then these alleged false representations were made after appellee had agreed with Heufeld and Jacobs to subscribe $5,000 for stock, and could have had no influence in inducing her to do so.
But, accepting the jury’s finding upon that point as conclusive, this allegation as to Eeufeld’s wealth can hardly be considered as material, by itself, and it is coupled with and made a part of the other allegation upon which appellee relied, according to her declaration and evidence, setting forth representations that Keufeld and Jacobs would contribute the amounts stated to the new corporation. If Neufeld had actually made such contribution the amount and value of his property would have been immaterial.
But these statements alleged in the declaration to have been made by Jacobs, but which appellee testifies were made by Jacobs and ¡Neufeld, respectively, namely, that Jacobs would put in $12,500 cash, and that Neufeld would put in $25,000 cash, were merely promissory.
In People v. Healy, 128 Ill. 9-15, it is said :
“ In an action to recover for fraud and deceit, the plaintiff must allege the facts relied on as constituting the fraud, and where false representations are relied upon it is essential that they relate to some material existing fact or facts, and not to the future intention of the defendant, which he may or may not perform.”
And the court quotes from Kerr on Fraud and Mistake, 88:
“ As distinguished from the false representation of a fact, the false representation as to a matter of intention, though it may have influenced a transaction, is not a fraud in law.”
The falsity of these statements, even though the promise was not intended to be complied with, would not necessarily be proven by evidence tending to show that Jacobs and JSTeufeld did not at the time possess the means to enable them to put in that amount of cash. The intention might have been perfectly honest, and based upon expectations of being able to raise the amount as needed from time to time. Heufeld’s testimony tends to show that he was able to raise the amount agreed to be contributed by himself, and Jacobs appears from the evidence to have had nearly three-fourths of the amount agreed to be contributed by him.
“ It can not be said that these representations were false when made, for, until the proper time arrived, and plaintiff refused to comply with them, it could not positively be known that they would not be performed.” Gage v. Lewis 68 Ill. 604, 615.
And in the same case it is said:
“ A promise to" perform an act, though accompanied at the time with an intention not to perform, is not such a representation as can be made the ground of an action at law. The party should sue upon the promise, and if this be void he has no remedy.”
Representations alleged to be false, which the evidence in this case tends to show relate to a material existing fact, are testified to by Mrs. Marks as having been made when she turned over her certificate of deposit, for the purpose of paying in her own contribution to the capital stock of the new corporation. She says she was informed by Jacobs that he and Neufeld were ready to put their money in, and that Neufeld produced three papers, white and blue, one of which she thought looked like her certificate of deposit, and said: “ Here is our money.” If this evidence could justify the conclusion that Jacobs and Neufeld then and there falsely represented that they were about immediately to putin, the one $25,000 and the other $12,500, and that Neufeld had the money, his own and Jacobs’, or its equivalent, actually in his hands as an officer of the company, and that thereby appellee was induced to pay in her contribution, being falsely led to believe that by so doing the capital would be fully paid up and was based upon proper allegations in the declaration, a different case would be presented. .But such is not the evidence. Appellee herself says that she understood the money of the others was to be paid in from time to time, “ just as the business required it.” It is conceded that both Neufeld and Jacobs did put in money, and appellee’s testimony as to what occurred on that occasion is entirely consistent with the view that the papers produced were certificates or drafts representing money of theirs then contributed.
I am of opinion that the declaration fails to state a sufficient cause of action.
“ A verdict will aid a defective statement of a cause of action, but will never assist a statement of a defective cause of action.” C. & A. R. R. Co. v. Clausen, 173 Ill. 100, 104.
The investment was unfortunate, and it is quite possible that appellant took advantage of appellee’s confidence in him to induce her to join in the enterprise which proved unsuccessful. But I am unable to concur in the opinion that a case has been made out entitling her to recover in this action.