of the other party. Metropolitan Life Insurance Co. v. Babb, 128 N.J.Eq. 391, 16 A.2d 548. However, to warrant setting aside the contract, the fraud must be in the original transaction and not in non-fulfillment of the contract. Ebert v. Givas, 109 N.J.Eq. 495, 158 A. 412. To avoid a contract for fraud, the fraud must have induced execution of the contract. Bankers' Indemnity Ins. Co. v. Henry Henkel & Sons, 118 N.J.Eq. 244, 178 A. 565. From the evidence presented, the court cannot find that the statements made to the CPA were made to induce any action on the part of the plaintiff; they were not made to the plaintiff, and plaintiff did not become aware of them until after it had entered into the lease. Statements made after the lease had been executed, of course, are not actionable because they could not have influenced plaintiff's action in signing the lease.
The complaint alleges that the defendant David Simon falsely represented that the building could lawfully be leased to plaintiff and that it could be completed and equipped for plaintiff's business. The testimony does not correspond with this allegation. Chaleyer, president of the plaintiff corporation, testified that, during the negotiations prior to signing the lease, he made known to David Simon the purpose for which the building was to be used and that after discussion he determined that he could use the building in accordance with his plans. The court does not find from the testimony that Simon made any representations in this regard. Moreover, statements of law do not generally constitute fraud. Wiebke v. DeWyngaert, 88 M.N.Eq. 41, 101 A. 410. In Williston on Contracts, Rev. Ed. 1937, Sec. 1495, the author says, 'A representation of what the law will or will not permit to be done is one on which the party to whom it is made has no right to rely; * * * It is an opinion * * *. In Sec. 1496 Williston states that a prediction of future events is a statement of opinion and is not actionable. The general rule in New Jersey seems to be that fraud must relate to a present or pre-existing fact and cannot ordinarily be predicated on unfulfilled promises or statements as to future events. Norfolk & N. B. Hosiery Co. v. Arnold, 49 N.J.Eq. 390, 23 A. 514; Lembeck v. Gerken, 86 N.J.L. 111, 90 A. 698. See: 51 A.L.R.,P. 49, note 7; Farwell v. Colonial Trust Co., 8 Cir., 147 F. 480. An exception to this rule exists where an expert possessed of superior knowledge renders an opinion he knows to be false. In such a case the representation is regarded as one of fact. Roemer v. Conlan, 52 N.J.L. 53, 18 A. 858. No claim is made here that any expressions of expert opinion were made, or that David Simon was possessed of superior knowledge. Plaintiff is to be charged with the same knowledge of what the law would or would not permit as were the defendants. Significant factually in this regard is plaintiff's application to the CPA for permission to complete the building; it was stated that the project was to used for the manufacture of food flavoring in condensed form and that the project was justified on the ground that the products were 'essential for certain needs and aids in public health.' From this it can be inferred that on November 21, 1946 and for some time prior thereto plaintiff was actually aware that in order to secure approval of its plans it would have to qualify its project as 'essential.'
The case of Wilday v. Panas, 122 N.J.L. 28, 3 A.2d 619, relied on by plaintiff, does not represent a departure from the general rules alluded to above since the representations in that case in part referred to existing boundaries as well as the assertion that plaintiff could use the premises for a specified purpose. Whether or not the boundaries were as defendants described them was a then ascertainable fact. In the light of the above authorities, it does not seem that plaintiff could succeed even if the allegations of the complaint were proved. Nor would plaintiff be able to recover on a theory of implied covenant. It has been recently held that a lessor does not impliedly covenant that the demised premises are suitable for the use which he is aware is intended by the lessee. Marx v. Standard Oil Co. of New Jersey, 6 M.J.Super. 39, 69 A.2d 748.
Defendant's counterclaim was not supported by sufficiently compelling evidence. Accordingly, it, too, must fail.
Conclusions of Law
1. The evidence discloses no false representations upon which a claim for relief can be granted.
2. Even if the representations alleged had been made, they would afford no basis for relief.
3. Defendants are not entitled to relief on the counterclaim.
4. Neither party is entitled to the relief requested.
An order may be submitted in conformity herewith.
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