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.