Opinion by
Smith, J.,
If these cases turned merely on what took place between [111]*111Miller and Fulmer, relative to the lot in question, it is clear that Miller would have no ground for seeking to avoid his contract. The false representations by Fulmer were wholly of a promissory nature, respecting his intended use of the 'property. He alleged nothing as a fact, past or present. He held no relation of trust or confidence toward Miller; exercised no influence or constraint that affected his free agency; and it is not pretended that there was any mental weakness on the part of Miller, of which Fulmer took advantage. There is no allegation that the contract does not express the- actual agreement of the parties; that anything was omitted through fraud, accident or mistake, to the prejudice of Miller; that Miller was ignorant of its contents or its effect; or that there was anything in the nature of surprise or haste in its execution. It does not appear that the bargain was an unconscionable one in Fulmer’s favor, nor is this alleged in Miller’s bill, or in his answer to the bill of Fulmer and Fink. Thus the principal grounds on which a contract is voidable in equity are absent. While fraud is set up as the ground of avoidance, the only matter alleged as fraud is that Fulmer represented that he intended to use the property for a wholesale wood and willow-ware establishment, while secretly intending to transfer it to Fink. But a false statement, to be deemed fraudulent in law, must relate to something represented as a fact existing either in the past or the present. Neither a declaration of an intention not really entertained, or a promise made with no intention of performance, is of itself a fraud that will vitiate a contract : Smith v. Smith, 21 Pa. 367; Backentoss v. Speicher, 31 Pa. 324; Grove v. Hodges, 55 Pa. 504. Expressions of purpose, promises, and predictions, that fail of realization, are fraudulent in law only when they are connected with misrepresentations respecting alleged facts, or falsely hold out a prospect of collateral advantages that leads the vendor to accept a price greatly below the real value of the property parted with, as in Williams v. Kerr, 152 Pa. 560, or the vendee to pay a price far above its real value, as in Sutton v. Morgan, 158 Pa. 204. In Grove v. Hodges, supra, an attempt was made to impeach the grant of a right to take iron ore, executed nine years previously, on the ground that the grantee’s agent, during the negotiations, had said to the grantor that a furnace would [112]*112be built in a year, or at most in two years, and designated the places for their erection; that the grant was executed with this understanding ; and that no furnace had been built and no ore taken out. The Supreme Court said: “ It would be' going very far to hold that a man may be relieved from his deed by proof that when it was made promises were held out to him that were not performed. Fraud, it is true, avoids all contracts, but fraud consists in representations of things as facts which are not such, or in deceitful concealment of existing facts, neither of which is found in the evidence. The conveyance was not upon condition that furnaces should be built. If void, then it must be that deceit was practiced before it was made or at the time of its execution. But a promise is not, of itself, a false and deceitful representation. Performance may have been intended when the promise was made. If so, then there was no wrong done when the title passed out of the grantor, and certainly a failure to perform the promise cannot revest a title after it has been divested. We agree with the learned judge of the common pleas that there was nothing in the evidence either to affect the construction of the contract, or from which the jury could find fraud to avoid it.” In that case there was nothing to indicate whether the grantee intended to build furnaces or not, beyond the fact that for nine years he had made no movement in that direction. But whether an expressed purpose is real or simulated, the injury arising from failure of execution is the same, and there is no substantial basis for distinguishing, as to legal effect, between an actual and a feigned purpose, or for holding that fraud is involved or implied in .the failure to carry out an expressed intention. That a declaration of purpose must be made good, in the absence of any stipulation respecting it, on pain of being held fraudulent, is a proposition resting on neither reason nor authority. In all that took place between Miller and Fulmer, there was nothing that legally bound, Fulmer to carry out his expressed purpose in buying, and nothing that was a legal bar to his abandonment of any purpose he may have entertained.
It clearly appears, however, that the purchase from Miller was but part of.a larger scheme, depending for its accomplishment on bad faith, deceit and trickery on the part of Fulmer and Fink? The lot mentioned in the contract was in rear of a [113]*113lot which Fink had tried to buy of Mrs. Blair, Miller’s aunt, but which she had refused to sell to him, for the reason that he was a business competitor of Miller, to whom she had recently sold an adjoining lot. While it does not appear that the ground of this refusal was directly communicated to Fink, it cannot well be doubted, in view of all the circumstances, that he understood it. He shortly afterward employed Fulmer, a stranger to all the parties, to negotiate for the Blair lot as if wishing to purchase for himself; and after several interviews with Africa and Thompson, Mrs. Blair’s agents, they agreed to sell to him. In these negotiations Fulmer repeatedly represented that his purpose in buying was to open a wholesale wood and willow-ware establishment; and the evident advantage of this to the business of the town led Mrs. Blair and her agents to consent to the sale. It appears, indeed, that Africa and Thompson suspected that Fulmer was secretly buying for Fink; and when the price had been fixed, one of them drew up an agreement, setting forth in substance, as one of the conditions of sale, that Fulmer was purchasing the lot for his own use, on which to conduct a wholesale wood and willow-ware business, with a view to having him sign it. Showing this to Fulmer, they told him that they would not sell to Fink, nor to him if he had any connection with Fink, and that if he was buying for Fink the deal would be off. They decided, however, not to require him to sign this, but said that they would take his word respecting his purpose in buying and that he had no connection with Fink. Fulmer at once gave his word to this effect, and added that he did not know Fink. Upon this assurance they closed the contract. As they were about concluding it, Africa suggested to Fulmer the purchase of the lot here in controversy as a desirable addition to the Blair lot, and opened communication with Miller by telephone, advising him to sell. Later in the day Fulmer called on Miller and broached the subject, repeating to him the representations he had made to Africa and Thompson respecting his purpose in buying. While Miller, during their negotiations, made no reference to Fink, and apparently had no suspicion of Fulmer’s real design, it is impossible, under all the circumstances, to doubt Fulmer’s knowledge that Miller would have refused to sell had he known that the property [114]*114would pass at once to his business rival. Miller was then negotiating for the purchase of some land, of which the lot in controversy formed part.
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Opinion by
Smith, J.,
If these cases turned merely on what took place between [111]*111Miller and Fulmer, relative to the lot in question, it is clear that Miller would have no ground for seeking to avoid his contract. The false representations by Fulmer were wholly of a promissory nature, respecting his intended use of the 'property. He alleged nothing as a fact, past or present. He held no relation of trust or confidence toward Miller; exercised no influence or constraint that affected his free agency; and it is not pretended that there was any mental weakness on the part of Miller, of which Fulmer took advantage. There is no allegation that the contract does not express the- actual agreement of the parties; that anything was omitted through fraud, accident or mistake, to the prejudice of Miller; that Miller was ignorant of its contents or its effect; or that there was anything in the nature of surprise or haste in its execution. It does not appear that the bargain was an unconscionable one in Fulmer’s favor, nor is this alleged in Miller’s bill, or in his answer to the bill of Fulmer and Fink. Thus the principal grounds on which a contract is voidable in equity are absent. While fraud is set up as the ground of avoidance, the only matter alleged as fraud is that Fulmer represented that he intended to use the property for a wholesale wood and willow-ware establishment, while secretly intending to transfer it to Fink. But a false statement, to be deemed fraudulent in law, must relate to something represented as a fact existing either in the past or the present. Neither a declaration of an intention not really entertained, or a promise made with no intention of performance, is of itself a fraud that will vitiate a contract : Smith v. Smith, 21 Pa. 367; Backentoss v. Speicher, 31 Pa. 324; Grove v. Hodges, 55 Pa. 504. Expressions of purpose, promises, and predictions, that fail of realization, are fraudulent in law only when they are connected with misrepresentations respecting alleged facts, or falsely hold out a prospect of collateral advantages that leads the vendor to accept a price greatly below the real value of the property parted with, as in Williams v. Kerr, 152 Pa. 560, or the vendee to pay a price far above its real value, as in Sutton v. Morgan, 158 Pa. 204. In Grove v. Hodges, supra, an attempt was made to impeach the grant of a right to take iron ore, executed nine years previously, on the ground that the grantee’s agent, during the negotiations, had said to the grantor that a furnace would [112]*112be built in a year, or at most in two years, and designated the places for their erection; that the grant was executed with this understanding ; and that no furnace had been built and no ore taken out. The Supreme Court said: “ It would be' going very far to hold that a man may be relieved from his deed by proof that when it was made promises were held out to him that were not performed. Fraud, it is true, avoids all contracts, but fraud consists in representations of things as facts which are not such, or in deceitful concealment of existing facts, neither of which is found in the evidence. The conveyance was not upon condition that furnaces should be built. If void, then it must be that deceit was practiced before it was made or at the time of its execution. But a promise is not, of itself, a false and deceitful representation. Performance may have been intended when the promise was made. If so, then there was no wrong done when the title passed out of the grantor, and certainly a failure to perform the promise cannot revest a title after it has been divested. We agree with the learned judge of the common pleas that there was nothing in the evidence either to affect the construction of the contract, or from which the jury could find fraud to avoid it.” In that case there was nothing to indicate whether the grantee intended to build furnaces or not, beyond the fact that for nine years he had made no movement in that direction. But whether an expressed purpose is real or simulated, the injury arising from failure of execution is the same, and there is no substantial basis for distinguishing, as to legal effect, between an actual and a feigned purpose, or for holding that fraud is involved or implied in .the failure to carry out an expressed intention. That a declaration of purpose must be made good, in the absence of any stipulation respecting it, on pain of being held fraudulent, is a proposition resting on neither reason nor authority. In all that took place between Miller and Fulmer, there was nothing that legally bound, Fulmer to carry out his expressed purpose in buying, and nothing that was a legal bar to his abandonment of any purpose he may have entertained.
It clearly appears, however, that the purchase from Miller was but part of.a larger scheme, depending for its accomplishment on bad faith, deceit and trickery on the part of Fulmer and Fink? The lot mentioned in the contract was in rear of a [113]*113lot which Fink had tried to buy of Mrs. Blair, Miller’s aunt, but which she had refused to sell to him, for the reason that he was a business competitor of Miller, to whom she had recently sold an adjoining lot. While it does not appear that the ground of this refusal was directly communicated to Fink, it cannot well be doubted, in view of all the circumstances, that he understood it. He shortly afterward employed Fulmer, a stranger to all the parties, to negotiate for the Blair lot as if wishing to purchase for himself; and after several interviews with Africa and Thompson, Mrs. Blair’s agents, they agreed to sell to him. In these negotiations Fulmer repeatedly represented that his purpose in buying was to open a wholesale wood and willow-ware establishment; and the evident advantage of this to the business of the town led Mrs. Blair and her agents to consent to the sale. It appears, indeed, that Africa and Thompson suspected that Fulmer was secretly buying for Fink; and when the price had been fixed, one of them drew up an agreement, setting forth in substance, as one of the conditions of sale, that Fulmer was purchasing the lot for his own use, on which to conduct a wholesale wood and willow-ware business, with a view to having him sign it. Showing this to Fulmer, they told him that they would not sell to Fink, nor to him if he had any connection with Fink, and that if he was buying for Fink the deal would be off. They decided, however, not to require him to sign this, but said that they would take his word respecting his purpose in buying and that he had no connection with Fink. Fulmer at once gave his word to this effect, and added that he did not know Fink. Upon this assurance they closed the contract. As they were about concluding it, Africa suggested to Fulmer the purchase of the lot here in controversy as a desirable addition to the Blair lot, and opened communication with Miller by telephone, advising him to sell. Later in the day Fulmer called on Miller and broached the subject, repeating to him the representations he had made to Africa and Thompson respecting his purpose in buying. While Miller, during their negotiations, made no reference to Fink, and apparently had no suspicion of Fulmer’s real design, it is impossible, under all the circumstances, to doubt Fulmer’s knowledge that Miller would have refused to sell had he known that the property [114]*114would pass at once to his business rival. Miller was then negotiating for the purchase of some land, of which the lot in controversy formed part. After a full discussion of the subject with Fulmer, Miller, apparently anticipating an indirect benefit from the business which he was led to believe that Fulmer was about to establish, gave the latter a written declaration of his Avillingness to sell him the lot if successful in purchasing, but without naming a price. This was on March t. On the 28th Fulmer received a deed for the Blair lot, Fink furnishing the purchase money. On the 29th he received the contract for the Miller lot which forms the subject of the present suits. Later, he transferred this contract to Fink and conveyed to him the Blair lot. From the testimony of Fulmer and Fink there is apparently no intention of opening a wholesale wood and willow-ware establishment on either of these lots, and Fulmer, by parting with his interest, has placed it out of his power to do this.
The allegation of a conspiracy between Fulmer and Fink to obtain the property for Fink by the methods described is not material in law. With respect to a civil action, when two or more engage in a tort, their concert of action, though having the aspect of a conspiracy, is not an essential element of the case, and its effect is merely to make them joint wrongdoers. The gravamen of the action is the injury done to the plaintiff: Laverty v. Vanarsdale, 65 Pa. 507. In those cases the material question is whether the plaintiff has suffered an actionable wrong, through the acts of the defendants, for which he is entitled to redress.
Here Miller, through a subterfuge on the part of Fulmer and Fink, was inveigled into a contract which he could not have been led to make had he known its real design, the artifice resorted to for the purpose being concealed through falsehood and deceit verging on legal culpability. While the falsehood employed in the transaction may be viewed in the nature of a gratis dictum, not to be taken seriously unless made a contractual stipulation; as the venial lie of commerce, and not the mortal lie of fraud in law, fatal to the contract which it infects ; presenting no legal ground for avoiding the agreement of the parties; it may be considered by a court of equity where conscience and good faith may sway as the bal[115]*115aiming cast. Therefore, while the contract here may not be impeached at law, equity affords a measure of relief from it, since it has not been executed by a conveyance. Specific performance is not of right, but of grace. It does not necessarily follow that because a contract is binding at law, equity will enforce its performance. There are contracts which, when executed, equity will not rescind, but which, while executory, equity will not lend its aid to enforce : Graham v. Pancoast, 30 Pa. 89 ; Henderson v. Hays, 2 Watts, 148. No specific rule can be laid down for the determination of such cases, but each must be decided in view of its circumstances, and of the equities involved. Here Miller has undeniably been prejudiced through the device employed to mislead him; and it cannot be said that Fulmer and Fink are in court with clean hands, or that they have done equity in the premises. Notwithstanding this they now invoke the aid of a court of equity to consummate their scheme. Whatever may be said in a court of law of the pretenses here employed, the conduct of the defendants was marked bjr a degree of guile sufficient to bar the interposition of equity in furtherance of their design. The case is one in which a court of equity will not interfere either to rescind or enforce the contract, but will leave the parties to their remedies at law.
In the case of Miller v. Fulmer and Fink, the decree directing cancelation of the contract is reversed and the bill dismissed. In the case of Fulmer and Fink v. Miller, the decree refusing specific performance is affirmed and the bill dismissed, without prejudice to the right of the plaintiffs to proceed at law. Each party to pay his own costs.