dissenting. This case is very close on the question whether there is sufficient evidence to prove intent to deceive. It requires us to examine the fine line between failure to perform a contractual obligation and misrepresentation of fact. Surprisingly, no cases are cited by the parties dealing with the point, and I find no cases in which this Court has spelled it out. There are, however, cases from other jurisdictions which are helpful.
In Rigby Corp. v. Boatmen’s Bank and Trust Co., 713 S.W.2d 517 (Mo. App. 1986), the Trial Court awarded summary judgment to a lender which allegedly silently assented to renewal of a promissory note it had no intention of renewing, and the Court of Appeals affirmed. The Court held there was simply no support (evidence) that, at the time the representations by silence were made, the lender harbored an intent not to renew the note.
Fraud is never presumed and the law allows an inference of such deception “only if the evidence rises above mere suspicion and points logically and convincingly” to its presence. Weaver v. Travers, 631 S.W.2d at 83. Thus, where the transaction comports as well with honesty as with fraudulent purpose, the law refers it to the better motive. Powers v. Shore, 248 S.W.2d at 5 [2-4]. [The lender’s] conduct — the assent to extend the note assumed — to call the note on the due date despite the promise to extend, therefore, under the evidence most favorable to [the borrower], amounts at best to breach of contract, but not to actionable fraud. [713 S.W.2d at 540]
In Mark Twain Plaza Bank v. Lowell H. Listrom & Co., Inc., 714 S.W.2d 859 (Mo. App. 1986), a bank received a “trust letter” from a stock broker to the effect it would transfer shares of stock of a client to the bank as collateral. The letter failed to state that the shares in question were encumbered in a way that significantly lowered their value and made the promised delivery doubtful. The Court of Appeals affirmed the Trial Court’s holding that fraudulent misrepresentation had occurred. There was evidence, however, that the broker knew of the encumbrance which devalued it, and which would cause it not to be delivered, and that the bank was relying on the promise to deliver the stock.
In the case now before us, we have no direct evidence that when Trimble made the representations about the loan he knew and withheld the fact that Fidelity could not make the loan or that outside assistance was unlikely. There is nothing to show he knew the loan would- not be made. We do have, however, the Trial Court’s factual determination that Trimble was not telling the truth when he stated that the only reason the money was not forthcoming was because the signature of a Fidelity principal who was out of the country was needed. While someone could speculate, on the basis of this factual finding, that Trimble had become aware that Fidelity would be unable to come up with the money, I cannot go that far.
In my view, when the alleged misrepresentation consists of withholding information in the context of making a promise, we should insist on at least some evidence that when the promise was made there was an intent not to perform.
When misrepresentations involve a promise to perform an act in the future, the plaintiff must prove that, at the time the promise was made, the defendants did not intend to perform. Proof of the intent element is almost always made by circumstantial evidence and is “peculiarly a question for the trier of facts.” Pulchny v. Pulchny, 555 S.W.2d 543, 546 (Tex. Civ. App. 1977, no writ). Such intent (not to perform as promised) is usually not susceptible of direct proof because it depends on determining the “[h]idden purposes of the mind.” Id. at 545, quoting 37 Am.Jur. 2d, Fraud and Deceit, § 477 (1968). As stated in Pulchny, supra, to determine intent the court looks to the circumstances under which the promise was made, the relationships and interests of the parties, the nature of their transaction, the failure to perform and the nature of efforts of the promissor to perform. [Duval County Ranch Co. v. Wooldridge, 667 S.W.2d 887 at 895 (Tex. App. 3 Dist. 1984)]
See also Spoljaric v. Percival Tours, Inc., 708 S. W.2d 432 at 434 (Tex. 1986), where the Texas Supreme Court upheld a fraud determination but made it clear that “A promise to do an act in the future is actionable fraud when made with the intention, design and purpose of deceiving, and with no intention of performing the act.”
In this case, it may be that the Trial Court could have found an intent not to perform when the promise was made, but no such finding was made. While I understand the holding of the majority opinion to be that there was a withholding of material facts, I do not believe there has been a showing or a finding that Trimble knew facts which would make it clear to him that the loan could not be made. I would require evidence showing that he intended for Cook to rely on á promise he knew Fidelity could not or would not keep.
I respectfully dissent.
Holt, C.J., joins in this dissent.