The opinion
On Motion for Rehearing
On reconsideration of our original opinion we have reached the conclusion that we were in error in rendering judgment for exemplary damages.
It is not an essential element of fraud, as we erroneously stated, that the party charged therewith must know of the falsity of the representation in question. Graves v. Hartford Accident & Indemnity Co., 138 Tex. 589 , 161 S.W.2d 464 (1942).
“ . . . Where fraud is based on a promise to do something in the future, it is necessary to allege and prove that the promise was false and was made with no intention of keeping it . . .” Motors Insurance Corporation v. Freeman, 304 S.W.2d 580 (Tex.Civ.App.—Dallas 1957). See also McDonald v. Afro-American Life Insurance Co., 490 S.W.2d 891 (Tex.Civ.App.—Tyler 1973); Texas Employers Insurance Association v. West, 320 S.W.2d 55 (Tex.Civ.App.—Houston 1959).
Since no issue submitted to the jury was promissory in nature, no finding that the defendant or its agents knew the representations to be untrue is necessary to support the judgment for actual damages. Such a finding is necessary to establish that the fraud was intentionally committed for the purpose of injuring the plaintiffs. Without such a finding exemplary damages cannot be awarded. Dennis v. Dial Finance & Thrift Company, 401 S.W.2d 803 (Tex.1966). The trial court refused to award exemplary damages based on the jury verdict. While there is evidence to support a finding of intentional fraudulent conduct, we cannot say that the evidence establishes intentional fraud as a matter of law.
Our judgment reversing the judgment of the trial court in part and rendering judgment for exemplary damages is withdrawn, and the judgment is affirmed.