Hazlett v. Burge

1. Fraud: fraudulent representations of administrator: barred claims. The appellant, in his argument, claims that the basis of the action is frcmct, consisting of the deceitfri an<^ fraudulent practices of the defendant, resulting in injury to the plaintiff; that the promise of defendant in relation to the lands jg ge£ 01rj. for -j^g purpose 0f showing the fraud, and the means by which it was made effectual. The main allegations consist in the charge that the defendant “ fraudulently pretended that he would^consent to the allowance of said claim,” and made propositions to pay it in land, which “ plaintiff accepted, relying upon the promise of the defendant to allow said claim and to secure plaintiff a deed for the land.” It is averred that defendant knowingly neglected to consent to the allowance of said claim, and to take steps to secure a deed for the plaintiff, facts which the plaintiff did not know until after the estate was closed.

*538Argu. 1. Consitnents of fraud. Fraud,- in general, consists in the misrepresentation of matters offact, not in the failure to keep a promise, thereafter to do or omit, to do something. If it was . . ° averred that the defendant had represented to the plaintiff that the claim was allowed, when he knew it had not been, and this was done to deceive and did deceive the plaintiff!, this would be a clear ease of fraud.

Defendant had no power to allow the claim without the approbation of the County Court. Kev., § 2393.

It is not averred, at least with distinctness, that the defendant agreed with the plaintiff to act for him and to procure the allowance of the claim by the county judge.

Admitting that there may be cases in which fraud may be predicated of a failure to do some future act, we are unanimously of the opinion, that the facts stated in the petition do not make such a case against the defendant as to justify a recovery against him on the ground of fraud.

The cause will be remanded, with the same order as to amendment, that was made in the preceding case.

Affirmed.