I think the complaint states a cause of action under the doctrine of Kritzer v. Moffat, 136 Wash. 410, 240 P. 355, 44 A.L.R. 681. The court there held that a promise made, with a present intent of not carrying it out, constituted a misrepresentation of an existing fact upon which an action for fraud would lie. The complaint is replete with allegations of all other elements that go to constitute fraud (Raser v. Moomaw,78 Wash. 653, 139 P. 622, *Page 146 51 L.R.A. (N.S.) 707), including reliance upon the representation (promise) by the plaintiffs, to their damage. It is alleged that a condition of the promise on the part of the defendants was that the plaintiffs procure a release of the garnishment levied by the trustee of the Maxim Corporation. This release the defendants procured by the payment of "a substantial sum" to the trustee. It is wholly immaterial whether the trustee of the Maxim Corporation had a valid lien against the stock or a valid claim against the plaintiffs. Indeed, they alleged that they were advised that he did not have a valid claim against them. If the claim was invalid, that fact but serves to accentuate the extent of the damage sustained by plaintiffs in settling the claim in reliance upon defendants' promise.
I dissent.