53-4-5. Actual fraud, acts constituting, question of fact.

Actual fraud in relation to contracts consists of any of the following acts committed by a party to the contract, or with his connivance, with intent to deceive another party thereto or to induce him to enter into the contract:

(1)    The suggestion as a fact of that which is not true by one who does not believe it to be true;

(2)    The positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believe it to be true;

(3)    The suppression of that which is true by one having knowledge or belief of the fact;

(4)    A promise made without any intention of performing it; or

(5)    Any other act fitted to deceive.

Actual fraud is always a question of fact.

Source: CivC 1877, §§ 883, 885; CL 1887, §§ 3507, 3509; RCivC 1903, §§ 1201, 1203; RC 1919, §§ 816, 818; SDC 1939, §§ 10.0307, 10.0309.