Some courts, however, hold that a promise, even when made without the intention of keeping it and even if material, can not be fraud if the damage results solely from non-performance, as the essential feature relied on is the promise, without reference to the intent of the party making it.1 Thus a promise by a retail merchant to continue his business and to keep up his trade with a wholesale dealer, is not fraudulent, even if he did not intend to keep the promise when he made it, as it is both future and indefinite.2 If A conveys a half interest in the coal and mineral under his land in reliance upon B's promise that he will locate manufacturing plants on such property or near thereto, and that he will induce railroads to build tracks to such property, the fact that B did not intend to perform such contract does not entitle A to rescission of the deed for fraud.3 Even where a promise made without the intention of keeping it is not treated as fraud where the damage which is suffered results from non-performance, a different rule applies where the damage suffered is not the result of non-performance of the promise.4 Thus fraud was held to exist where a promise is made with no intention of keeping it, merely to induce promisee to come into the state so that the promisor may have him arrested,5 as the damage resulted from the arrest and not from the non-performance of the promise.

North Carolina. Troxler v. New Era Building Co., 137 N. Car. 51, 40 S. E. 58.

Pennsylvania. Williams v. Kerr, 152 Pa. St. 560, 25 Atl. 618.

26 Adams v. Gillig, 199 N. Y. 314, 32 L. R. A. (N.S.) 127, 92 N. E. 670; Braddy v. Elliott, 146 N. Car. 578, 16 L. R. A. (N.S.) 1121, 60 S. E. 507.

27Adams v. Gillig, 199 N. Y. 314, 32 L. R. A. (N.S.) 127, 92 N. E. 670.

28 Gibb v. Mintline, 175 Mich. 626, 141 N. W. 538.

29 Roberts v. James, 83 N. J. L. 492, 85 Atl. 244; Fischer v. Hillman, 68 Wash. 222, 39 L. R. A. (N.S.) 1140,

122 Ac. 1016; Martin v. South Blue-field Land Co., 81 W. Va. 62, 94 S. E. 493.

30 Mamaux v. Cape May Real Estate Co., 214 Fed. 757.

1 Colorado. Farris v. Strong, 24 Colo. 107, 48 Ac. 963.

Illinois. Gage v. Lewis, 68 111. 604; People v. Healy, 128 111. 9, 15 Am. St. Rep. 90, 20 N. E. 692; Haenni v. Blesch, 146 111. 262, 34 N. E. 153; Day v. Improvement Co., 153 111. 293, 38 N. E. 567 [affirming 53 111. App. 165]; Miller v. Sutliff, 241 111. 521, 24 L. R. A. (N.S.) 735, 89 N. E. 651.

Indiana. Fouty v. Fouty, 34 Ind.