S.) 245; Powell p. Bradlee, 9 G. A 3. 220; Dow v. Sanborn, 3 Allen, 181; Watson v. Silsby, 166 Mass. 67, 43 N. E. 1117; Ayera v. Farwell, 196 Mass. 349,82 N. E. 35; Phinney v. Friedman, 224 Mass. 531,113 N. E. 285; Shipraan v. Seymour, 40 Mich. 274; Ross v. Miner, 67 Mich. 410, 35 N. W. 60; Friabee v. Chickering, 115 Mich. 185, 73 N. W. 112; Bidault v. Wales, 19 Mo. 36, 59 Am. Dec. 327; Fox v. Webster, 46 Mo. 181; Stewart v. Emerson, 52 N. H. 301; Hall v. Naylor, 18 N. Y. 588, 75 Am. Dec. 269; Henne-quin v. Naylor, 24 N. Y. 139; Whitten v. Fitzwater, 129 N. Y. 626, 29 N. E. 298; Ash p. Putnam, 1 Hill, 302; Cary v. ITotailing, 1 Hill, 311, 37 Am. Dec. 233; Durrell v. Haley, 1 Paige, 492, 19 Am. Dec. 444; Des Fargea v. Pugh, 93 N. C. 31,53 Am. Rep. 446; Richardson v. Vick, 125 Term. 532, 145 S. W. 174; Davis v. McWhirter, 40 U. C. Q. B. 598.
98 Smith v. Smith, 21 Pa. St. 367, 60 Am. Dec. 51; Rodman v. Thai-heimer, 75 Pa. St. 232; Bughman v. Bank, 159 Pa. St. 94, 28 Atl. 209 (in this case Mitchell, C. J., though regarding the Pennsylvania rule as established, and, therefore, following it, said that it "was not in harmony with . . . sound policy or the principles of business honesty").
99 Edgington v. Fitimaurice, 29 Ch. D. 459; Swift v. Rounds, 19 R. I. 527, 35 Atl. 45, 33 L. R, A. 561, 61 Am. St. Rep. 791. But see Dawe v. Morris, 149 Mass. 188, 192, 21 N. E. 313, 4 L. R. A. 158, 14 Am. St. Rep. 404, where Devens, J., said: "The plaintiff further contends that, as where goods have been obtained under the form of a purchase, with the intent not to pay for them, the seller may, on discovery of this, rescind the contract and repossess himself of the goods as against the purchaser, or any one obtaining the goods from him with notice or without consideration, an action of tort should be maintained on an unfulfilled promise which at the time of of making the promisor intended not to perform, by reason of which nonperformance the plaintiff has suffered injury in having been induced to enter into a coo-tract which depended for its successful and profitable performance upon the performance by the defendant of his promise. Assuming that the plaintiffs declaration enables hj™\ to raise this question, which may be doubted . . . there is an obvious however, is not universally admitted.1 If the reasoning is sound it would follow that it is immaterial whether the buyer is insolvent or not; the intention not to pay would be the only material circumstance. This result seems correct and would doubtless generally be reached, but not perhaps everywhere.2 It would also logically follow that in any case where a promise was made with a preconceived intention not to perform it, the promisor would be guilty of a fraudulent misrepresentation of fact. Many courts certainly would not be prepared to go to this length.3 If it cannot be said that making a promise with intent not to perform it involves a misrepresentation of fact, the seller's right to rescind must be based on the ground that the circumstances of the case of which the seller was ignorant, and which the buyer, knowing their materiality, failed to disclose, render the transaction fraudulent and make it equitable to avoid it. If this be accepted as the true ground, it would seem to follow that hopeless insolvency on the part of the buyer, not disclosed to the seller, ought of itself to afford ground for rescinding a sale; and though it is generally held that mere nondisclosure of insolvency will not suffice to avoid a sale,4 where difference between the case where a contract is rescinded, and thus ceases to exist, and one in which the injury results from the nonperformance of that which it is the duty of the defendant to perform, and where there is no other wrong than such nonperformance. To term this a 'tort' would be to confound a cause of action in contract with one in tort, and would violate the policy of the Statute of Frauds by relieving a party from the necessity of observing those statutory formalities which are necessary to the validity of certain executory contracts."
1See Pollock, Torts (2d ed.), p. 252, and note (m). Also extract from Dawe v. Morris in the preceding note, and Kiteon v. Farwell, 132 HI. 327, 23 N. E. 1024; Donovan v. Clifford, 225 Mass. 435, 114 N. E. 681. In Commonwealth v. Althause, 207 Mass. 32, 93 N. E. 202, 31 L. R. A. (N. S.)
999, it was held that no prosecution for obtaining property by false pretences could be maintained.
2 La Grand v. Eufaula Nat. Bank, 81 Ala. 123, 1 So. 160 (but see Maxwell v. Brown Shoe Co., 114 Ala. 304, 21 So. 1009). Insolvency was not mentioned as requisite in Donovan v. Clifford, 225 Mass. 435, 114 N. E. 681; German Nat. Bank v. Princeton State Bank, 128 Wis. 60, 107 N. W. 454, 6 L. R. A. (N. S.) 556. In Ditton v. Purcell, 21 N. Dak. 648,132 N. W. 347, 36 L. R. A. (N. S.) 149, it was held that the giving of a check in payment of the price of personal property with intent, after obtaining possession, to set off note of the seller barred by bankruptcy or obtain a discount from the purchase price in settlement, was a fraud on the seller, for which he might rescind, and recover the property.
3 See supra, Sec. 1495.
4 Ex parte Whittaker, L. R. 10 Gh.
the buyer knows that his financial condition is such that it will be impossible for him to pay, the inference is strong that he did not intend to pay.6