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.