If a material fact is misrepresented, the addition of a promise to such misrepresentation does not prevent it from being fraud, if the other elements of fraud exist.1 Thus a false statement as to present ability to perform a contract;2 a statement by A to B to the effect that X was making plans to enter into a specified business and that A was authorized to represent X;3 as that a driller has appliances which can control quicksand;4 or a false statement that a given contract has been made;5 as a representation that a mill and iron foundry has been contracted for;6 or that a railway has agreed to extend its line to a certain point;7 or that a given contract has not been made;8 or a statement that a deed does not contain anything affecting the interest of a given party and that if anything does affect such interest it would be made good,9 is fraud. If an agent for an undisclosed purchaser represents that his principal is a responsible builder who is about to construct a valuable building upon such property and thus induces the vendor to agree to accept the note of the purchaser for the greater portion of the purchase money, when in fact the purchaser was not responsible financially and her note was not marketable, such misrepresentation is a defense in an action for specific performance.10 A promise may be the means by which a false impression is conveyed, and if so it may amount to fraud.11 If the vendee has learned that there is a valuable granite quarry underlying certain land, and he buys such land representing that he means to use it as a pasture and to keep others from crossing his own land in going to and from the land which he is buying, such false statement may amount to fraud.12 If such promise is carried into the contract and is made a term thereof, failure to perform is a breach, and is discussed hereafter.13

29 Hardison v. Reel, 154 N. Car. 273, 70 S. E. 463.

30 Hunter v. Sherron, - N. Car. - , 97 S. E. 5. (Possibly this is really to be explained as a case of fraud as to the contents of the instrument.)

31 Gandy v. Weckerly, 220 Pa. St. 285, 123 Am. St. Rep. 691, 18 L. R. A (N.S.) 434, 69 Atl. 858.

32 See ch. LXIX.

1 California. Dobinson v. McDonald, 92 Cal. 33, 27 Ac. 1098; Russ, etc., Co. v. Water Co., 120 Cal. 521, 65 Am. St. Rep. 186, 52 Ac. 995.

Iowa. Wood v. Lambert, 85 la. 580, 52 N. W. 515; Dashiel v. Harshman, 113 la. 283, 85 N. W. 85.

Kansas. Sargent v. Ry. Co., 48 Kan 672, 29 Ac. 1063.

Michigan. Daniel v. Robinson. 66 Mich. 296, 33 N. W. 497; Barker v. Finlay, 200 Mich. 166, 166 N. W. 996.

Missouri. Traber v. Hicks, 131 Mo. 180, 32 S. W. 1145.

Texas. Davis v. Driscoll, 22 Tex. Civ. App. 14, 54 S. W. 43.

2 Russ, etc., Co. v. Water Co., 120 Cal. 521, 65 Am. St. Rep. 186, 52 Ac. 995; Sargent v. Ry. Co., 48 Kan. 672, 29 Ac. 1063.

3 O'Connor v. Lighthizer, 34 Wash. 152, 75 Ac. 643.

4 Davis v. Driscoll, 22 Tex. Civ. App. 14, 54 S. W. 43.

5 Kremer v. Lewis, 137 Minn. 368, 163 N. W. 732; Owens v. Land Co., 96 Va. 560, 28 S. E. 950.

6 Owens v. Land Co., 95 Va. 560, 28 S. E. 950.

But a statement that arrangements have been made for locating a depot on a given tract of land is not fraud: Lambert v. Land Co. (Va.), 27 S. E. 462.