Conford, Gaulkin and Kilkenny. The opinion of the court was delivered by Gaulkin, J.A.D.
Upon defendants' motion the trial court dismissed the first count of plaintiff's complaint, "for failure to state a claim upon which relief can be granted." We granted plaintiff leave to appeal.
The count alleged malicious interference by defendants with plaintiff's prospective economic advantage. The following is a summary of the facts asserted in the count. Since Francis H. Leggett & Co. is alleged to be a wholly-owned subsidiary of defendant Seeman Bros., Inc., and to have acted as the agent of the latter with knowledge of the facts, the defendants are collectively called Seeman.
On or about August 1, 1961 Snyder was advised by Seeman that Seeman sought approximately 25 to 30 acres of land in New Jersey, within ten miles of the George Washington [79 NJSuper Page 90] Bridge, with railroad facilities for the erection of a warehouse, and that it had made exhaustive attempts and research over an extended period to acquire property with such characteristics, but had been unsuccessful. Seeman requested Snyder to ascertain whether it could find any property possessing such characteristics available for purchase, and, if so, to submit details to it so that, if satisfactory, Seeman could negotiate for the purchase thereof through Snyder as broker. Thereupon, Snyder "ascertained that three adjacent parcels of land owned or controlled by Cobest Industrial Park, William Frederick Reckner and Rosina Francaville, comprising in excess of 30 acres, was available for purchase in whole or in part," which "possessed all of the characteristics required by Seeman, except railroad facilities." Snyder then negotiated with the railroad, and with some of the owners of lands over which a spur might be run, "and ascertained that such construction was feasible and that the railroad was probably willing to undertake the same * * * and * * * that such owners were willing to consider proposals for such construction." Snyder disclosed the foregoing to Seeman, and on or about September 1 Snyder exhibited the properties to one Landau, an officer and director of Seeman, who, upon such inspection, advised Snyder that the properties complied with Seeman's needs and desires. Landau made an appointment for the same day with Snyder for an inspection of the properties by Kratze and others, affiliated with Seeman. In spite of the appointment, the Seeman officials did not appear. Attempts by the Snyder officials to contact Seeman representatives were unsuccessful, and then the Labor Day weekend (September 2-4) intervened. On or about September 5, 1961 Snyder learned that over the weekend Seeman had purchased the Reckner property for $420,000 and the Francaville property for $630,000, in the name of Leggett, and had begun negotiations with the railroad for the construction of the railroad facilities. Title passed on October 20, 1961, Leggett agreeing to indemnify the sellers against claims of brokers for commissions.
The first count expressly alleged that:
"14. Prior to disclosing to Seeman the details of the availability of said properties for purchase, Snyder had ascertained that such properties were available for sale and that a brokerage commission would be paid if a sale was effected.
While said owners had not entered into any written agreement for the payment of commissions, Snyder alleges that except for the acts of defendants, it was reasonably probable that such commissions would have been paid by such owners to Snyder."
The count further charged that defendants "lulled Snyder into believing that Seeman was still considering the advisability of purchasing said properties, and purposely avoided all contacts and conferences with Snyder, when, as a matter of fact, Seeman had already concluded to negotiate for the properties in the name of Leggett."
All of the foregoing, alleged plaintiff, was done with the intention of depriving plaintiff of the commission which it was reasonably probable plaintiff would have earned and received from the owners.
Defendants moved for "judgment of dismissal" of this count "pursuant to provisions of R.R. 4:12-2(e)." No other reasons were given in the notice of motion. R.R. 4:12-2(e) refers to motions which assert "failure to state a claim upon which relief can be granted." After argument, the trial judge reserved decision. Thereafter, by letter to counsel, he announced that "the defendants' motion for judgment of dismissal of the First Count of the Complaint pursuant to R.R. 4:12-2, for failure to state a claim upon which relief can be granted, is granted." The judge gave no reasons for his decision, and he has filed no opinion.
Defendants now advance many arguments why the dismissal of the count should be affirmed, but we do not know precisely which of these arguments moved the trial court to its action. However, counsel seem to agree that the motion was granted upon the theory that the count was fatally deficient because it did not allege that plaintiff ...