A claim that the defendant falsely represented that money would be returned if the sale did not close is one for promissory fraud. Harrison v. Gibson, 534 So.2d 257, 259 (Ala. 1988). Likewise, then, a claim that the defendants falsely represented that the plaintiff's applications would be approved if all the boxes were checked also is one for promissory fraud.
Rather, there must be some evidence that would indicate a present intent not to perform, even if that evidence is only circumstantial. See Byrd v. Lamar, 846 So.2d 334, 347 (Ala. 2002) (“Circumstantial evidence is appropriate proof of a present intent not to perform in a promissory-fraud case.”), and Harrison v. Gibson, 534 So.2d 257, 259 (Ala. 1988) (“Intent to deceive and intent not to perform at the time a promise is made can seldom be proven directly . . . .”). Heisz v. Galt Indus., 93 So.3d 918, 925-26 (Ala. 2012) (brackets in original).
Rather, there must be some evidence that would indicate a present intent not to perform, even if that evidence is only circumstantial. See Byrd v. Lamar, 846 So.2d 334, 347 (Ala.2002) (“Circumstantial evidence is appropriate proof of a present intent not to perform in a promissory-fraud case.”), and Harrison v. Gibson, 534 So.2d 257, 259 (Ala.1988) (“Intent to deceive and intent not to perform at the time a promise is made can seldom be proven directly....”). However, the parties in the present case dispute what circumstantial evidence may be offered as proof of Heisz's intent.