(dissenting).
Whatever might be the merit of the legal discussion embraced in the opinion of the court on original deliverance, it would seem to be purely academic in so far as the issues presented by this appeal are concerned. The decision is primarily based on an assignment of the lease by Nelson to Prudential. Though the pleadings in this case are rather confused and repetitious, as best I can tell there is no averment or admission in the cross bill that the lease had in fact been assigned. True, such an assignment does appear in the record as an exhibit in the answer of Prudential, but this does not detract from the sufficiency of the cross bill as against the asserted demurrer. True also, the cross bill alleges that the rents from the lease have been assigned but this is entirely different from an assignment of the lease itself, as the assignments of the rents alone does not affect the equities between lessor and lessee. 51 C.J.S., Landlord & Tenant, § 259, p. 901.
An aspect of the cross bill as last amended seeks the cancellation of the lease on the ground of fraud in its inception. The fraud allegedly consisted in the representations or promises on the part of the lessee to modernize the premises and to merchandise the entire premises when materials permitted. It is alleged that this was a material inducement of the contract and that Darling had no intention of living up to these promises or representations at the time they were made and that he breached this agreement. There can be no question, of course, but that a promise made with no intention of performance may be a misrepresentation of a subsisting fact and *504if material and relied on as an inducement to the contract constitutes fraud. Williams v. Williams, 238 Ala. 637, 193 So. 167.
But it is argued that in this case the lease embodied the whole agreement between the parties and the prior oral understanding between the parties cannot be shown. A written contract does not estop the parties from showing fraud in the inducement. “The law does not countenance a contract against the consequences of fraud.” Alabama Machinery & Supply Co. v, Caffey, 213 Ala. 260, 104 So. 509, 511. Furthermore, the “promises” in this case are in reality statements of facts as to the intended use and manner of occupation of the premises. See 17 C.J.S., Contracts, § 157; Norm Co. v. City Drug Stores, Tex.Civ.App., 59 S.W.2d 270; Old Colony Trust Co. v. Dubuque Light & Traction Co., C.C., 89 F. 794. It is my view, therefore, that, under the allegations of the cross bill, the landlord is entitled to an opportunity to present the proof and have a determination of rights as to this aspect.
On the prior consideration of this case, it was held that the mere nonperformance of the terms of the lease by the lessee did not warrant a cancellation of the lease (255 Ala. 586, 52 So.2d 211). The cross bill now before us, however, alleges not only nonperformance but the stated fraud, supra, on the part of the lessee which if true would warrant a cancellation of the option to renew. Shell Petroleum Corp. v. Gowan, 240 Ala. 497, 199 So. 849. Demurrers to this aspect of the bill should have been overruled.
The third aspect of the bill sought a declaration that the lease had never been renewed due to the failure of the lessee to tender to the landlord another $40,000 loan and a $12,000 advance. As I see it, the grounds of demurrer attacking this aspect of the bill should have been overruled, since it cannot be said as a matter of law that transactions concerning these items were or were not terms or conditions of the lease and should have been repeated as a part of the renewal. Nor can it be said that, on demurrer, the tender of these amounts was or was not necessary to perfect a renewal even if they were terms and conditions of the lease. It seems to me, therefore, that this aspect of the cross bill alleges a sufficient justiciable controversy to entitle the landlord to a declaration of rights under the renewal clause.
I therefore respectfully dissent.