¶1I cannot concur in the opinion of the majority of the Court in this case, for the reason that it seems to me that the complaint does allege fraud.
¶2The complaint alleges: "That said defendant's neglect and refusal to furnish said money was done by him with intent to injure this plaintiff by depriving her of the one means by which she could hope to pay for the indebtedness against said property. Hoping thereby to force this plaintiff to forfeit property to him, although said property as well worth more than double the amount of her indebtedness. That the defendant's neglect to discharge his obligation in said contract in utter disregard of the rights of this plaintiff was done with wilful and wanton intent to injure this plaintiff."
¶3It is true the plaintiff does not use the word "fraud." but that which is done with intent to deprive another of his rights is fraud, and the plaintiff has alleged that which would make fraud and therefore, it seems to me, has alleged fraud. Whatever may be thought of the preponderance of the evidence, I think there was evidence from which the jury might have inferred fraud. The question for this Court is, was there any evidence?
¶4Neither can I concur in the statement of Mr. Justice Hydrick at the conclusion of the opinion of Mr. Justice Watts, because fraud includes omission as well as commission.
¶5It seems to me that an act is not fraudulent in itself and only becomes fraudulent when there is an intent to deprive another of some legal right.
¶6The statement, therefore, which confines fraud to an act, ignores fraudulent omission and concealment and also ignores what I deem to be the rule, that there must not only be an act or omission, but the act or omission must be done with fraudulent intent. *245