Phelps v. Aurora State Bank

Action to recover $2,604.33 on a count for money liad and received. The trial court submitted to the jury two questions arising upon the issues made. They were found favorably to the plaintiffs and if given effect would permit a recovery of $777.37. Afterwards the court vacated the findings and directed judgment for the defendant. The plaintiffs appeal from the order denying their motion for a new trial.

Our holdings are that a material promise, to be performed in the future, made with intent to defraud, the maker intending at the time not to keep it, constitutes actionable fraud. Smith v.…