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was given to a partnership, the latter subsequently being incorporated, the former partners becoming its sole shareholders.
The fact that Lodge's promise to the Edison Company NOT TO SELL STOCK TO THE EXCHANGES, IN RELIANCE UPON WHICH THE EdISON COMPANY'S CONSENT TO THE TRANSFER WAS OBTAINED, RELATED TO THE FUTURE, DOES NOT OPERATE TO DEPRIVE THIS TRANSACTION OF THE CHARACTER OF FRAUD, BECAUSE THE EVIDENCE SHOWS A SECRET INTENTION TO VIOLATE HIS PROMISE.
In addition to the case of Rogers vs. VirginiaCarolina Chemical Co., 149 Fed., 1, cited by the learned Court below, and to the reasoning in the opinion below, we may be permitted to add the following argument and to cite the following authoiities:
Although the rule is quite general that promises as to things to be done or not to be done are not ordinarily sufficient to constitute an act of legal fraud, yet an exception as general as the rule itself exists, which is that where a i-epresentation is made with the secret intention on the part of the representor that the same is not to be performed, such act is equivalent to a misrepresentation of an existing fact, for it is equivalent to a misrepresentation as to the representor's intention. In other words, the cases hold that a representation by a person that he will use property in a certain way if it is transferiedto, or acquired by, him, with the secret intention that if he acqniies it, it will be used in another way, is tantamount to a representation as to an existing fact.
In Hart vs. Moulton, 104 Wis., 349, the Wisconsin Supreme Court draws the distinct:on between the two kinds of actionable deceit, viz., the one based on false representations, and the other on a fiaudulent, secret intention, as follows:
" From the foregoing, the following principles may be stated as established: If a person misrepresent to another material facts, knowing, or under such circumstances that he ought to know, the truth, for the purpose of inducing such other