M Civ JI 128.03 Fraud Based on Bad-Faith Promise

Plaintiff claims that defendant defrauded [ him / her / it ] by making a promise of future conduct. To establish this, plaintiff has the burden of proving by clear and convincing evidence:

(a) that defendant promised that [ describe promise alleged by plaintiff ].

(b) that at the time defendant made the promise, [ he / she / it ] did not intend to keep it.

(c) that defendant made the promise with the intent that plaintiff rely on it.

(d) that plaintiff relied on the promise.

(e) that plaintiff was damaged as a result of [ his / her / its ] reliance.

Your verdict will be for the plaintiff if the plaintiff has proved all of those elements by clear and convincing evidence.

Your verdict will be for the defendant if the plaintiff has failed to prove any one of those elements by clear and convincing evidence.

Note on Use

If more than one type of fraud is at issue, the final paragraph of this instruction must be revised to instruct the jury that the verdict will be for the defendant only if plaintiff fails to prove any of the types of fraud claimed.

This instruction should be accompanied by the definition of clear and convincing evidence in M Civ JI 8.01.

Comment

This instruction is based on the bad-faith exception to the rule that fraud cannot be based on promises of future conduct. Hi-Way Motor Co v International Harvester Co, 398 Mich 330; 247 NW2d 813 (1976); Rutan v Straehly, 289 Mich 341; 286 NW 639 (1939); Laing v McKee, 13 Mich 124; 87 Am Dec 738 (1865); Jim-Bob, Inc v Mehling, 178 Mich App 71, 90; 443 NW2d 451 (1989).

A mere broken promise standing alone is not sufficient evidence of fraud. Marrero v McDonnell Douglas Capital Corp, 200 Mich App 438; 505 NW2d 275 (1993); see also Hi-Way Motor Co (evidence was too remote to show fraudulent intent at the time the promise was made).

For a discussion of Michigan cases on the quantum of proof in fraud actions, see Disner v Westinghouse Electric Corp, 726 F2d 1106 (CA 6, 1984); but see Mina v General Star Indemnity Co, 218 Mich App 678; 555 NW2d 1 (1996).

History

M Civ JI 128.03 was added December 1994. Amended January 2020.