At the same time, the client has himself elected to dispense with the services part of his bargain in order to reach a result — settlement — obviously within the contemplation of the parties when their agreement was formed. Thus the suggested Ohio rule is consistent with the general failure of consideration doctrine also recognized by the Ohio courts, e.g., French v. Millard, 2 Ohio St. 44, 51-52 (1853); Darst v. Brockway, 11 Ohio 462, 472 (1842); Henry v. Reich, 80 Ohio App. 185, 187, 72 N.E.2d 500 (1947); 11 Ohio Jur.(2) Contracts §§ 91, 218, 219 (1955). It remains to inquire whether the general rule of Ohio law thus understood should be avoided in the present case because Craig promised to pay a contingent fee "in consideration of services rendered."
Under Ohio law, the elements of deceit are: (1) an actual or implied representation or concealment of a matter of fact, which relates to the present or past and is material to the transaction; (2) the representation was false; (3) the representation was made with knowledge of its falsity, or with utter disregard and recklessness as to its truth; (4) the representation was made with the intent of misleading Black Hills into relying upon it; (5) Black Hills relied upon the representation with a right to so rely; and (6) injury resulted as a consequence of the reliance. Henry v. Reich, 72 N.E.2d 500, 502 (Ohio Ct. App. 1947). "[T]he misrepresentation must be of a fact existing when the misrepresentation was made."
Id. Failure of consideration "is the neglect, refusal and failure of one of the contracting parties to do, perform, or finish [the consideration] after making and entering into the contract..." Henry v. Reich, 72 N.E.2d 500, 501 (Ohio Ct. App. 1947). Again, Plaintiffs rely on the assumption that Defendants are bound to produce under the Lease.