189 Ill. 360 | Ill. | 1901
delivered the opinion of the court:
The following allegation in the bill filed in this case, taken in connection with the other allegations of the bill, as set forth in the statement preceding this opinion, presents the questions, which arise upon a demurrer to the bill, to-wit: “That neither the said Joseph H. Murphy, nor Mary J. Crane, paid any consideration for said property; that your orator is informed and believes, that said Joseph H. Murphy procured said warranty deed from said Thomas Murphy by agreeing to pay him $5000.00 therefor, but your orator states that said Joseph H. Murphy never intended to pay his father any part of said $5000.00 but that said promise was a device to and did mislead the said Thomas Murphy, and to enable the said Joseph H. and his wife to get said property without consideration, and to exclude the said brothers and sisters from and deprive them of their natural rights and interests in said property, or the proceeds thereof, as the heirs of said Thomas Murphy.”
The main question, 'presented by the demurrer, is whether the allegation, so as above quoted from the bill, was sufficient as a charge of fraud against the defendants in error, Joseph H. Murphy and Mary C. Murphy, to have justified the court below in retaining the bill, and requiring it to be answered.
The bill seeks to set aside the deeds to Joseph H. Murphy and Mary C. Murphy upon the theory, that Joseph H. Murphy procured a warranty deed to himself from Thomas Murphy by agreeing to pay him the sum of $5000.00, the said Joseph H. Murphy never intending, however, to pay that sum, and never having paid the same. The bill presents simply the case of a contract unperformed on the part of the grantee. This being so, the remedy is clearly at law, and suit should have been brought by Thomas Murphy in his lifetime, or by his personal representatives, for the purchase money.
But, independently of this consideration, the bill merely charges a false representation as to a matter of intention. The allegation is, that Joseph H. Murphy procured the deed from Thomas Murphy by agreeing to pay him $5000.00 therefor. If he agreed to pay $5000.00 therefor, lie in effect announced his intention to pay $5000.00, and the only charge of fraud is, that he did not intend to pay, when he represented that he did intend to pay. In other - words, the allegation in question involves a mere promise to do a thing in the future. The representation can only be regarded as fraudulent and false from the fact, that Joseph H. Murphy never did pay $5000.00 for the property in question, and, therefore, was guilty of a breach of his promise, and nothing more. It follows, that the bill does' not show such fraud on the part of Joseph H. Murphy in procuring the execution and delivery of the deed, as will authorize a court of equity to set it aside.
The law upon this subject is well settled.' Kerr, in his work on Fraud and Mistake, (Bump’s ed. p. 88) says: “As distinguished from the false representation of a fact, the false representation as to a matter of intention, not amounting to a matter of‘fact, though it may have influenced a transaction, is not a fraud at law, nor does it afford a ground for relief in equity.” The foregoing statement of the law has been quoted with approval by this court in the following cases, to-wit: Gage v. Lewis, 68 Ill. 604; People v. Healy, 128 id. 9; Haenni v. Bleisch, 146 id. 262. A false representation, within the meaning of the law, ■must be a representation as to an existing or past fact, and not merely a promise to do an act in the future. “A failure to comply with such a promise does not constitute fraud. The general rule is that, to amount to fraud, there must be a willful, false representation as to an existing or past fact.” (Murray v. R. P. Smith & Sons, 42 Ill. App. 548).
In Gage v. Lewis, supra, it was said “that to warrant an action for a deceitful representation it must assert a fact or facts as existing in the present tense. A promise to perform an act, though accompanied at the time with an intention not to perform, is not such a representation as can be made the ground of an action at law. The party should sue upon the promise, and if this be void he has no remedy.” (Gallagher v. Brunel, 6 Cow. 346). Even if at the time when such representations, amounting to a mere promise to do an act in the future, are made, it is not intended to comply with them, it is but an unexecuted intention, which has never been held of itself to constitute fraud. (Gage v. Lewis, supra).
In Haenni v. Bleisch, supra, it appeared, that a father induced one of his daughters to make a deed, and represented that, if she would do so, he would pay the value of the lands, conveyed to her, in money or other property; and this representation was held to be a mere promise to do a thing in the future; it was also there held that the representation, so made by the father to his daughter, could not be regarded as fraudulent and false, as the only allegation of fraud and falsehood consisted in the fact that the father never did pay the value of the lands to his daughter, and this fact was held to have amounted merely to a breach of the promise, and nothing more. In the case at bar, the allegations of the bill are similar to those in the case of Haenni v. Bleisch, supra, and must be governed by the principles there announced.
“In alleging fraud, it is well settled, both at law and in equity, that the mere general averment, without setting out the facts, upon which the charge is predicated, is insufficient. * * * It is essential that the facts and circumstances which constitute it (the fraud) should be set out clearly, concisely, and with sufficient particularity to apprise the opposite party of what he is called upon to answer.” (9 Ency. of Pl. & Pr. pp. 686, 687; Brooks v. O’Hara, 8 Fed. Rep. 529; Jones v. Albee, 70 Ill. 34; Klein v. Horine, 47 id. 430). In Smith v. Brittenham, 98 Ill. 188, we said: “Charges of fraud should not be general, but the facts should be stated upon which the charges are based.” Here, the bill does not state the circumstances, under which the deed from Thomas Murphy to Joseph H. Murphy was executed, nor does it state in what the agreement, claimed to have been made with fraudulent intent on the part of Joseph H. Murphy, consisted. The agreement is the foundation, upon which the plaintiff in error, William M. Murphy, seeks to base his claim for relief, but it does not appear from the bill when the agreement was made, or whether it was oral or' in writing, or when the money was to be paid, nor does the bill state clearly any of the terms of the agreement.
Moreover, the allegation of fraud, as made in the present bill, is made upon information and belief; and “an allegation of fraud upon information and belief can not be sustained, unless the facts, upon which the belief is founded, are stated in the pleadings.” (9 Ency. of Pl. & Pr. p. 694; Brooks v. O'Hara, supra). “A mere statement that the plaintiff is informed, or is informed and believes, puts in issue only his information and belief, and not the truth or falsity of the facts thus referred to.” (3 Ency. of Pl. & Pr. p. 363; Walton v. Westwood, 73 Ill. 125).
In view of what has been said, the allegation in the present bill cannot be regarded as charging any agreement whatever between Thomas' Murphy and Joseph H. Murphy as to the payment of $5000.00. The demurrer does not admit the existence of the agreement, but only the information and belief of the complainant in the bill upon the subject. As the fraudulent intent is based upon this supposed agreement, the bill fails to allege fraud with sufficient clearness.
For the reasons above stated, we are of the opinion that the bill was demurrable, and that the general demurrers thereto were properly sustained by the court below.
Accordingly, the decree óf the court below in dismissing the bill is affirmed.
5ecree affirmed.
