tain an action for the deceit. The existence of such an intention is not a mere promise or a matter of opinion, but a present fact peculiarly within the knowledge of the buyer; and the concealment of an intention contrary to that indicated by his conduct in buying may well be termed, as it has been, a fraudulent concealment.3 § 902. The intention not to pay must be one existing at the time of the sale, or, as it is often described, a preconceived intention, and not merely one formed after the sale. It must 17 N. W. R. 98; Lee v. Simmons, 65 Wis. 523, 27 N. W. R. 174; Gainesville Nat. Bank v. Bamberger, 77 Tex. 48, 13 S. W. R. 959, 19 Am. St. R. 738; Deitz v. Sutcliffe, 80 Ky. 650; Kline v. Baker, 106 Mass. 61; Watson v. Silsby, 166 Mass. 57, 43 N. E. R. 1117; Morrison v. Adoue, 76 Tex. 255, 13 S. W. R. 166; Stewart v. Emerson, 52 N. H. 301; Syracuse Knitting Co. v. Blanchard, 69 N. H. 447, 43 Atl. R. 637; Dow v Sanborn, 3 Allen (Mass.), 181; Ayres v. French, 41 Conn. 142; Morrill v. Blackman, 42 Conn. 324; Reager v. Kendall (Ky.), 39 S. W. R. 257; Merrill Chem. Co. v. Nickells, 66 Mo. App. 678; Reid v. Lloyd, 67 Mo. App. 513; Staver Mfg. Co. v. Coe, 49 Ill. App. 426; Hudson v. Bauer Grocery Co., 105 Ala. 200, 16 S. R. 693; Shipman v. Seymour, 40 Mich. 274; Zucker v. Karpeles, 88 Mich. 413, 50 N. W. R. 373; Frisbee v. Chickering, 115 Mich. 185, 73 N. W. R. 112; Sprague v. Kempe, 74 Minn. 465, 77 N. W. R. 412; Consolidated Milling Co. v. Fogo (1899), 104 Wis. 92, 80 N. W. R. 103; Lee v. Simmons, 65 Wis. 523, 27 N. W. R. 174; Adler v. Thorp, 102 Wis. 70, 78 N. W. R. 184. 1 So held in Swift v. Rounds (1896), 19 R. I. 527, 35 Atl. R. 45, 33 L. R. A. 561, 43 Cent. L. J. 266, 61 Am. St. R. 791. 2 See ante, § 871. 3 See cases supra. 4" Nor is it enough that after the purchase the vendee conceives a design and forms a purpose not to pay for the goods, and successfully avoids paying for them. The only intent that renders the sale fraudulent is a positive and predetermined intention, entertained and acted upon at the time of going through the forms of an apparent sale, never to pay for the goods." Burrill v. Stevens (1882), 73 Me. 395, 40 Am. R. 366 [citing Cross v. Peters, 1 Greenl. 378; Biggs v. Barry, 2 Curtis, 259; Parker v. Byrnes, 1 Low. 539; Rowley v. Bigelow, 12 Pick. 307, 23 Am. Dec. 607]; King v. Brown, 24 Ill. App. 579; Syracuse Knitting Co. v. Blanchard, 69 N. H. 447, 43 Atl. R. 637; Skinner v. Michigan Hoop Co., 119 Mich. 467, 78 N. W. R. 547. Where, however, goods previously ordered but not then received are subsequently received and kept. at a time when the buyer knows, or ought to know, that he cannot pay for them or must fail in his business, it was held that an intent not to pay for them may be inferred, even though, when he ordered them, he thought he could pay for them. Whitten v. Fitzwater, 129 N. Y. 626, 29 N. E. R. also be an intention not to pay at all or never to pay, and not merely an intention not to pay according to the contract or not to pay when due.1 § 903. Intention not to pay coupled with insolvency. The intention not to pay is usually found coupled with a concealed condition of insolvency, and there can be no question that if a buyer, who is insolvent and who intends not to pay, conceals from the seller his condition and intention for the purpose of securing the goods, there is such a fraud upon the seller as will entitle him to disaffirm the sale. The condition of insolvency, though usual and made a prerequisite to disaffirmance in some States,3 does not seem, upon principle, to be necessary. It is, however, frequently of importance as bearing upon the question of intention. Direct proof of an inten 298; Pike v. Wieting, 49 Barb. (N. Y.) 314. But the contrary is declared in Brooks v. Paper Co., 94 Tenn. 701, 31 S. W. R. 160. And in all cases evidence of what was done afterward is admissible for the purpose of throw ing light upon the intention at the time of the purchase. Ross v. Miner, 67 Mich. 410, 35 N. W. R. 60. 2 See cases cited in notes to section 901. 3 Thus, in Alabama, three things must be shown to entitle the seller to rescind: 1. That the purchaser was at the time of the sale insolvent or in failing circumstances. 2. That he had at the time a preconceived intention not to pay for the goods, or, what is deemed equivalent, no reasonable expectation of being able to pay for them. 3. There must have been on the part of the purchaser either a fraudulent concealment of, or a fraudulent representation in reference to, one or more of these facts. Le Grand v. Eufaula National Bank, 81 Ala. 123, 60 Am. R. 140, 1 S. R. 460. See also Kyle v. Ward, 81 Ala. 120; Robinson v. Levi, 81 Ala. 134; Wollner v. Lehman, 85 Ala. 274. But see now, Maxwell v. Brown Shoe Co., 114 Ala. 304, 21 S. R. 1009. "To constitute the fraud there must be a preconceived design never to pay for the goods. A mere intent not to pay for the goods when the debt becomes due is not enough; that falls short of the idea. A design not to pay according to the contract is not equivalent to an intention never to pay for the goods, and does not amount to an intention to defraud the seller outright, although it may be evidence of such a contemplated fraud." Burrill v. Stevens, 73 Me. 395, 40 Am. R. 366. To same effect: Bidault v. Wales, 20 Mo. 546, 64 Am. Dec. 205; Beebe v. Hat- 4 See cases cited in notes to section field, 67 Mo. App. 609; Strickland v. 901. Willes (Tex. Civ. App.), 43 S. W. R. 602. tion not to pay is usually impossible to make. It may therefore, as is said in one case,1 "be deduced from the facts and circumstances without any actual representations, full knowledge by the purchaser of his insolvency being always a controlling element." $ 904. Cause for rescission, distinct from false representations. Buying goods with the intention not to pay for them is a ground of avoidance entirely distinct from that of false representations, and may exist when no such representations were made. In Pennsylvania, however, the rule is other wise, and it is not enough unless there was also some "actual artifice intended and fitted to deceive." And the same rule has, with some modification, been declared in Alabama.* $ 905. Intention, how determined. The existence of the intent is a question of fact for the jury, and here, as in other cases of fraudulent intent, a wide range of inquiry is allowed, to put before the jury all the facts and circumstances 1 Belding v. Frankland, 8 Lea 66 Ark. 233, 50 S. W. R. 455; Hart v. (Tenn.), 67, 41 Am. R. 630. Moulton (1899), 104 Wis. 349, 80 N. W. R. 599. 2 Thus in Ross v. Miner, 67 Mich. 410, 35 N. W. R. 60, it is said: "If they [the purchasers] bought the goods intending never to pay for them, and intending to get rid of such payment by the interposition of [a] mortgage between the plaintiffs' and defendant's assets, then it would be a fraud upon plaintiffs having an equal effect in law as regards this suit as if they had made false and fraudulent representations as to their financial standing at the time they bought the goods." And in Bugg v. Wertheimer-Schwartz Shoe Co., 64 Ark. 12, 40 S. W. R. 134, 45 Cent. L. Jour. 97, there is a full discussion to the effect that the two causes for rescission are distinct and separate, and one may exist without the other. So also in Johnson Co. v. Triplett, 3 Smith v. Smith, 21 Pa. St. 367; Backentoss v. Speicher. 31 Pa. St. 324; Rodman v. Thalheimer, 75 Pa. St. 232. 4 See cases cited in second note to section 903; Le Grand v. Eufaula Nat. Bank, 81 Ala. 123, 1 S. R. 460, 60 Am. R. 140; Kyle v. Ward, 81 Ala. 120, 1 S. R. 468; Robinson v. Levi, 81 Ala. 135, 1 S. R. 554; Wollner v. Lehman, 85 Ala. 274, 4 S. R. 643. But see now, Maxwell v. Brown Shoe Co., 114 Ala. 304, 21 S. R. 1009. 5 Gavin v. Armistead, 57 Ark. 574, 22 S. W. R. 431; Byrd v. Hall, 2 Keyes (N. Y.), 646; Ross v. Miner, 67 Mich. 410, 35 N. W. R. 60; Watson v. Silsby, 166 Mass. 57, 43 N. E. R. 1117; Boyd v. Shiffer, 156 Pa. St. 100, 27 Atl. R. 60. which may throw light upon it. Thus, for example, evidence of similar representations made to others, or of similar purchases made of others at about the same time, is admissible for the purpose of showing the intention with which the representations or purchases in question were made. And so it is competent to prove that the vendee, who knew himself to be insolvent, purchased goods, at about the same time, of many other persons, in largely excessive quantities, and out of the season for their sale, as throwing light upon the question of his intention not to pay for them.3 1 Ross v. Miner, 67 Mich. 410, 35 N. W. R. 60; Taylor v. Mississippi Mills, 47 Ark. 247, 1 S. W. R. 283; Brower v. Goodyer, 88 Ind. 572; Huthmacher v. Lowman, 66 Ill. App. 448; Edelhoff v. Horner Mfg. Co., 86 Md. 595, 39 Atl. R. 314. 2 Raby v. Frank, 12 Tex. Civ. App. 125, 34 S. W. R. 777; Fait & Slagle Co. v. Truxton, 1 Pennew. (Del.) 24, 39 Atl. R. 457; Freeman v. Topkis, 1 Marv. (Del.) 174, 40 Atl. R. 948; Huthmacher v. Lowman, 66 Ill. App. 448; Cox Shoe Co. v. Adams, 105 Iowa, 402, 75 N. W. R. 316. In the last case (Cox Shoe Co. v. Adams) the court said: "If the issues presented involve the intention or good faith of the defendants, then, as bearing thereon, evidence is admissible of like transactions at or about the time, or that the act complained of is a part of a series of similar occurrences. Adams had purchased but one small bill of goods through misrepresentation or concealment, it might well be argued that there was no intent to defraud because of the small profit. But when it appears that this is only one of a series of different purchases, made under similar circumstances, and a part of a scheme to accumulate goods valued at thousands of dol lars, on credit, then his fraudulent purpose is apparent. Bigelow, Fraud, 160; State v. Brady, 100 Iowa, 191; Rowley v. Bigelow, 12 Pick. 306; Insurance Co. v. Armstrong, 117 U. S. 591; Schofield v. Shiffer, 156 Pa. St. 65." 3 Cox Shoe Co. v. Adams, supra. In the following cases the facts were held not to amount to such fraud upon the seller as to warrant rescission: Levi v. Bray (1895), 12 Ind. App. 9, 39 N. E. R. 754. Hattie L. Wolf and Max B. Kaufman were engaged in business under the firm name of Wolf & Kaufman. Lee Wolf, husband of H. L. W., as her representative, assisted in the management of the business of the firm. Appellees, prior to June 23, 1893, had sold goods to the firm of W. & K., which goods If were on that date still unpaid for. Appellees on that day pressed for payment, whereupon L. W. represented to appellees that the firm of W. & K. was solvent and had accounts outstanding sufficient to pay all their indebtedness, which statements were accepted as true by ap pellees, and they thereupon importuned L. W. to buy more goods from them, but he replied that they did $ 906. Concealment of insolvency or inability to pay not enough. The fact that the purchaser is at the time insolvent, or in such a financial condition that he can have no not want to buy. On July 8, 1893, one of appellees' traveling salesmen called and took from W. & K. an order for goods amounting to $471.85, being for the goods mentioned in the complaint, which order was duly filled, and the goods upon being received were at once mingled with the stock of W. & K., then worth about $19,000. On October 5, 1893, W. & K. mortgaged their stock of goods to Levi to secure payment of $19,000, of which sum $12,000 was owing directly to Levi, and for the other $7,000 he was surety. All of this indebtedness except $787 was in existence on June 23, 1893. On October 9, 1893, the appellees instituted this action, having previously demanded of W. & K. "a rescission of the sale and return of the goods." The goods were seized on that day by the sheriff, and were of the value of $330. On October 10, 1893, "Levi by a written bill of sale purchased said stock and took possession of the same," in satisfaction of the mortgage thereon held by him. At the time of taking his mortgage Levi had no knowledge that the appellees had or claimed any interest in the goods. The debts owing by W. & K. to L. were bona fide. L. was the father of H. L. Wolf. W. & K. were in fact insolvent on June 23, 1893, yet they continued doing business and buying goods. Appellees believed the statements made by L. W. concerning the solvency of W. & K. to be true, and on the faith thereof sold the goods. It was held that the goods were not acquired by W. & K. from appellees by fraud, and that L. had the better title to the goods. Said the court, speaking by Mr. Chief Justice Ross: "The representations relied on by the appellees as the basis of their right to recover were made not for the purpose of inducing appellees to sell the goods in controversy, but were made to mollify appellees' apprehensions, so that they would not urge the payment of the balance then due them from Wolf & Kaufman. To constitute fraud sufficient to set aside a sale of goods the purchase must have been perfected through some artifice, trick, false pretense, misstatement of the facts, or suppression of the truth, which enables the purchaser to obtain possession of the goods without consideration." Fromer v. Stanley (1897), 95 Wis. 56, 69 N.W. R. 820. F. is a manufacturer and wholesale dealer in cigars in New York city. S. is a retail dealer in cigars in Milwaukee. A. is F.'s salesman. S. had been accustomed to buy cigars from A., both before and after A. became salesman for F. S.had bought of F.through A.twentyfive thousand cigars, under agreement of F. that he would aid S. in selling fifteen thousand of them to the retail trade, and A. had gone with S. for that purpose. On their way home, in October, 1894, after selling the cigars, A. and S., being acquaintances of eight or nine years' standing, had fallen to discussing S.'s affairs. It was testified by A. that in the course of the conversation the following was said by A. to S.: “Why you must be worth from $20,000 to $50,000," and that S. "poo-hooed at |