I am unable to see where either the matter of a future promise or that of the expression of an opinion are relevant to the situation here presented.
If witness Pierce is to be believed and the jury evidently did so), the check given defendant Whatley was not to be presently presented, but preserved with the contract in an office at Troy and used only upon well understood conditions. But the check was a negotiable instrument and to a third party was presently payable. When, therefore, Whatley had Jackson to cash the check it was upon presentation of a negotiable instrument, to which of course were attached no conditions of presentation. Whatley said nothing, but he concealed from Jackson *Page 358 the conditional agreement he had with Pierce. There was here no promise relating to the future, nor was there any expression of opinion. It was the concealment of an existing fact, known to Whatley and unknown to Jackson, and of consequence the perpetration of a gross fraud. True all of this Whatley denied. But that merely presented a jury question.
I am content with the treatment of the case in the opinion of the Court of Appeals and consider further elaboration unnecessary. The judgment of the trial court was, in my opinion, correctly affirmed and of consequence I must respectfully dissent.