It is frequently said that a promissory statement cannot be the basis of an action for deceit; and a prediction of future events is at best a statement of opinion.55 It is undoubtedly true that failure to perform a promise cannot amount to fraud.56 And in many jurisdictions, without consideration of the question whether a promise was made with an intention not to perform it, it is held that the making of the promise cannot be an actionable fraud.57 It has been pointed out, however, that when a promise is made with intention not to perform it, the promisor is guilty of misrepresentation.58 And in a number of duced by the act of the vendor." 62 And it is undoubtedly the general rule, at least in courts of law, that it is not necessarily fraudulent for one party to a bargain consciously to take advantage of the ignorance or mistake of the other party, provided no words or acts of the former contribute to the mistake, and there is no duty of disclosure arising from a special relation of the parties.63 Even silence when a direct question is asked has been regarded as not in itself a fraud,64 though it would seem that a gesture or even an expression of the face might be enough in such a case to constitute actionable deceit.65 And one who after making an innocent misrepresentation discovers the truth, tyet thereafter silently allows another to act on the misrepresentation is guilty of fraud.66 "In effect he is continuing the representation with knowledge of its falsity." 67 It is necessary, especially where a written contract is in question of which equity might take jurisdiction, to consider in connection with such cases not only whether the party who keeps silent has in effect made a fraudulent representation which will afford ground for an action of deceit as well as a right of rescission, but whether even if this is not true there is such a mistake as to justify rescission. Unilateral mistake even apart from knowledge of the other party to the transaction of the mistake, has been held in some cases to justify relief;68 and it has been held
55 Pritchard v. Dailey, 168 N. C. 330, 84 S. E. 392.
56 Piedmont Land Go. v. Piedmont Foundry Co., 96 Ala. 389, 11 So. 332; Hirsch v. Hirsch, 21 Ark. 342; Burton v. Flatter, 53 Fed. 901, 10 U. S. App. 657, 4 C. C. A. 95; Feeney v. Howard, 79 Gal. 525, 21 Pac. 984,4 L. R. A. 826, 12 Am. St. Rep. 162; Adams v. Schiffer, 11 Colo. 15, 17 Pac. 21, 7 Am. St. Rep. 202; Harrington v. Rutherford, 38 Fla. 321, 21 So. 283; Dickinson v. Atkins, 100 111. App. 401; Hayes v. Burkam, 51 Ind. 130; Blaul v. Wandel, 137 la. 301, 114 N. W. 899; Sherman v. Smith (la.), 169 N. W. 216; Hubbard v. Long, 105 Mich. 442,-63 N. W. 644; Witt v. Cuenod, 9 N. Mex. 143, 50 Pac. 328; Patterson v. Wright, 64 Wis. 289, 25 N. W. 10.
57 Sawyer v. Prickett, 19 Wall. 146, 22 L. Ed. 105; Church v. Swetland, 243 Fed 289, 156 C. C. A. 69; Farris v. Strong, 24 Colo. 107,48 Pac. 963; Gage v. Lewis, 68 11I. 604; Grubb v. Milan, 249 111. 456, 94 N. £. 927; Murray v. Smith, 42 111. App. 548; Chambers v. Mitchell, 123 111. App. 595; Ingersoll v. Brown, 205 111. App. 537; Bethell v. Bethell, 92 Ind. 318; Balue v. Taylor, 136 Ind. 368) 36 N. E. 269; Robinson v. Reinhart, 137. Ind. 674, 36 N. E. 519; Dawe v. Morris, 149 Mass. 188, 21 N. E. 313, 4 L. R. A. 158,14 Am. St. Rep. 404; Brown v. Pierce, 229 Mass. 44,118
N. E. 66; Estes v. Desnoyers Shoe Co., 155 Mo. 577, 56 S. W. 316; Missouri Loan Ac. Co. v. Federal Trust Co., 175 Mo. App. 646, 158 S. W. Ill; Buhler v. Loftus, 53 Mont. 546, 165 Pac. 601; Perkins v. Lougee, 6 Neb. 220; Gallager v. Brunei, 6 Cow. 346; Fisher v. N. Y. Common Pleas, 18 Wend. 608; Barbrick v. Carrero, 171 N. Y. S. 447; Watkins v. West Wythe-ville Co., 92 Va. 1,22 S. E. 554; Tufts v. Weinfeld, 88 Wis. 647, 60 N. W. 992; Milwaukee Brick Co. v. Schoknecht, 108 Wis. 457, 84 N. W. 838; James Music Co. v. Bridge, 134 Wis. 510, 114 N. W. 1108. And in Burrill v. Stevens, 73 Me. 395, 399, 40 Am. Rep. 366, the court said that "a design not to pay according to the contract is not equivalent to an intention never to pay for the goods, and does not amount to an intention to defraud the seller outright, although it may be evidence of such a contemplated fraud."
58 "There must be a misstatement of an existing fact; but the state of a man's mind is as much a fact as the state of his digestion. It is true that it is very difficult to prove what the state of a man's mind at a particular time is, but if it can be ascertained it is as much a fact as anything else. A misrepresentation as to the state of a man's mind is, therefore, a cases, generally of recent date, the doctrine seems broadly accepted that a promise which the promisor does not intend to carry out may be a misstatement of material fact.50 The question becomes important chiefly where the buyer of goods at the time of the purchase intends not to perform his express or implied promise to pay for them.60 Though a prediction or gratuitous promise, when fraudulently made, involves a misrepresentation of mental condition similar to that when the promise is made for legal consideration, a difference is to be observed in the justification of the defrauded person in relying on the deceptive statements. Ordinarily predictions or promises wholly without consideration do not justify reliance.61