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Leslie Blau Co. v. Alfieri

Decided: February 28, 1978.

LESLIE BLAU CO., A DIVISION OF BLAU MORTGAGE CO., A NEW JERSEY CORPORATION, PLAINTIFF-RESPONDENT,
v.
DOMINICK ALFIERI ET AL., DEFENDANTS-APPELLANTS, AND RAYMOND E. REITMAN ET AL., CALI ASSOCIATES ET AL., DEFENDANTS-RESPONDENTS



Allcorn, Morgan and Horn. The opinion of the court was delivered by Horn, J.A.D. Morgan, J.A.D. (dissenting).

Horn

Plaintiff, a licensed real estate broker, sued for and recovered at the hands of a jury a judgment in the sum of $291,900 (later amended to $346,473.25 to reflect the addition of prejudgment interest) in this action predicated upon the theory that one or all of defendants tortiously interfered with its prospective advantage as a real estate broker.

Defendants named in the action, which was filed in January 1974, were Raymond E. Reitman, individually, and three corporations apparently controlled by him (the Reitman defendants); Angelo Cali together with certain named individuals and a corporation controlled by them (the Cali defendants); and Dominick Alfieri, individually, and M. Alfieri Co., Inc., a corporation (Alfieri Co.), together with others (the Alfieri defendants).

Each group of defendants answered plaintiff's complaint and crossclaimed for contribution and indemnification against the others. All defendants moved for summary judgment in their favor on the ground that they could not, as a matter of law, be responsible for real estate brokerage commissions on the facts presented. On February 17, 1976 the judge entered an order granting summary judgment only for the Reitman defendants, thereby dismissing the complaint and all crossclaims against them with prejudice. Application for leave to appeal by the Alfieri and Cali defendants was denied by us. The case proceeded to trial against the Alfieri and Cali defendants for eight days during the latter part of March and early part of April 1976. The jury returned the

stated verdict for plaintiff against the Alfieri defendants, only,*fn1 which verdict was molded to the sum of $291,900.*fn2 The jury's verdict exonerated the Cali defendants. The Alfieri defendants unsuccessfully moved for a new trial on the ground that the verdicts were against the weight of the evidence and for judgment n.o.v. On June 28, 1976 the Alfieri defendants filed their notice of appeal from the judgment entered against them in favor of plaintiff and the judgment entered in favor of the Cali defendants, and from the summary judgment in favor of the Reitman defendants.

Plaintiff, as a licensed real estate broker, was at all times before and during the history of this litigation in the real estate business, specializing in industrial real estate brokerage, including factory sites, warehouse sites and industrial buildings. Before 1972 plaintiff had sold land to and for the Reitman defendants both in Newark and Camden. These defendants operated a wholesale liquor business under two names -- Galsworthy, Inc. and Reitman Industries -- and a real estate business under the name of Rockingham Realty. The principal figure of the Reitman defendants was defendant Raymond E. Reitman. Plaintiff's representatives in the transactions leading to this litigation were Theodore E. Stein and Bernard Zimmel.

For many years before 1968 the Reitman defendants' headquarters, including their warehouse, were located on Frelinghuysen Avenue in Newark, in premises originally located for them by plaintiff. In 1968, wishing to expand, they gave plaintiff Blau an assignment to find a new location for them -- either a new warehouse and office building or land

upon which they could construct a new building. Although at first Reitman was interested in relocating to Middlesex or northern Union County, by 1972 his interest was narrowed to the West Essex County area. Blau undertook to find suitable land within the perimeter of the West Essex County area drawn by Reitman on a map which Reitman gave to Stein and Zimmel. By the summer of 1972, after the inspection of numerous properties suggested by plaintiff, Reitman's interest focused on an approximately 44-acre unimproved tract of land identified as Essex-Passaic Industrial Park in West Caldwell, which had been among those suggested by Stein. Reitman asked Stein for more information on the property.

Extensive investigation of the details of this property was conducted by plaintiff in the fall of 1972. The property was owned by Cali Well-Cald Associates, a partnership named as part of the Cali group of defendants. Negotiations looking toward a sale of all or part of the tract commenced in December 1972 between Angelo Cali and "Iggy" Seminara, both experienced builders and developers, as the active principals for the sellers, and Reitman and David Lowenstein, a vice-president of Galsworthy, Inc., for the Reitman defendants, as a result of plaintiff's bringing the parties together. Stein and Zimmel participated in these negotiations on behalf of plaintiff.

Initially Reitman, who acted for the Reitman defendants, was interested in buying 11 to 15 acres or in having Cali build the desired improvements and lease them back to Reitman with an option to purchase. Plaintiff arranged a meeting between Cali and Reitman on December 13, 1972. At this meeting Cali offered to sell the entire tract of approximately 40 acres, but the offer was rejected since the Reitman defendants were only interested in acquiring sufficient acreage to accommodate the construction of their proposed warehouse and offices. Cali quoted a price of $42,500 an acre net after commissions and told Stein that the price would be increased by whatever amount the broker was to be paid as commission.

With the statute of frauds (N.J.S.A. 25:1-9) in mind, on December 7, 1972 Blau wrote a letter to Cali confirming the December 13, 1972 meeting, which letter in part stated:

These people [Reitman defendants] have inspected the acreage which you own at the above captioned property and are interested in discussing the possibilities of acquiring a site suitable for a distribution center with an initial building of 150,000 sq. ft. and ultimate expansion to 200,000 sq. ft. They have inspected this site on several occasions with us and would now like to get together with you to see whether or not a satisfactory size piece can be purchased at a mutually agreeable price.

For the record, we wish to advise you that if you complete a sale of your property at the above address to the aforementioned companys [sic] or any individuals representing them, or to any company affiliated with said companys [sic] , you will be obliged to pay us a commission equal to 10% of the purchase price.

While they are not primarily interested in having a building built to suit on a lease basis, in the event some such arrangement develops you will be obligated to pay us a commission equal to 5% of the total aggregate rental on the terms of any lease as well as any option, renewal, or extension periods as well as for the rental for any additional area constructed.

After that meeting Blau again wrote to Cali. Pertinently this letter stated:

Mr. Ray Reitman and his associates advised us that they were very anxious to secure from you as soon as possible the various proposals and avenues for working up a deal that were explored and discussed at the meeting. We are anxious, therefore, for you to come up with proposals for the outright purchase of twelve to fifteen acres, the possible erection of a building built to suit using the specifications which were given to you by Mr. Reitman. Such a building would be built on the basis of a long-term lease with an option to buy. There are also the possibilities for the construction by you of a building on a suitable site which would be sold by you upon completion. The fourth possibility of course was the outright purchase of your entire property.

As per our previous letter of December 7, please be advised for the record that you will be obligated to pay us a commission equal to 10% of the selling price for any acreage sold to the above captioned companies, or any individuals representing it, or to any company affiliated with said companies.

In the case of a lease, you will be obligated to pay us a commission equal to 5% of the total aggregate rental for the term of the lease and any options, renewals, extensions or revisions thereof, as well as any additions which might be added to the building in the future.

In the case of an outright sale of a building which you would construct, the commission would be equal to 5% of the total selling price.

Reitman had not decided whether he wanted to purchase the land, wanted Cali to construct a building to lease to him or wanted to combine a short-term lease with an option to purchase. Therefore, on January 5, 1973, the Cali defendants submitted a number of proposals to Reitman in an effort to crystalize the purchaser's thoughts about the property. Cali prepared drawings of possible buildings which could be built on the property, and he provided alternative financial arrangements, such as sale of land, sale of land and buildings, lease with an option to buy, etc. Reitman remained indecisive as to how to proceed. On February 22 representatives of Cali, Reitman and Blau met at the office of David Mandelbaum, the attorney engaged by Reitman, to discuss the possible transaction. Although Reitman objected to Cali's price as being too high, that is, approximately $42,500 an acre net to the Cali defendants, some tentative agreement was reached for the Reitman defendants to purchase a portion of the Cali defendants' property. The transaction was to be solely a purchase of land, because Reitman planned at that time to undertake his own construction of the warehouse and office complex.

The total price that Reitman had orally agreed to pay for the land at the February 22 meeting was about $675,000, depending on the final number of acres multiplied by the gross $47,500 an acre price. This amount included a brokerage commission for Blau of $67,500. In addition, Reitman also agreed, as part of the brokerage commission in his purchase of the Cali property, to give Blau exclusive contracts to sell the two Reitman properties in Newark which would be vacated upon the move to West Caldwell.

Between February 22 and March 1, 1973 Reitman had changed his mind as to purchasing the property and had decided on a long-term lease alternative. On or about March 1, 1973 David Mandelbaum, Reitman's attorney, went to Cali's home and informed him of this decision. Reitman then retained an architect to draw plans for the building that he wanted on the property and to get competitive bids indicating what the construction cost would be and what the rental price would be. Mandelbaum and Cali discussed these developments and agreed that Reitman could put the building up for competitive bids and that Cali would be included as one of the bidders, but also that Cali would be given the "last look," or the opportunity to meet the other bids, so as to insure him the right to build. No binding agreement of any kind was executed between any of the Cali or the Reitman defendants.

By April 1, 1973 the architect's plan had been completed and forwarded to Cali and three independent builders, all prospective landlords, with a request for a per square foot rental figure on a long-term net lease to Reitman. All bidders were told to assume a purchase price for the land and to include a commission for Blau in the amount of $67,500. All bids were received by the third week in April 1973.

In the meantime Reitman and Cali had jointly applied to the planning board of West Caldwell to obtain approval of Reitman's intended use of the property. Reitman and Seminara appeared before the board between March 12 and April 3, 1973 for this purpose, and use approval was granted on April 4, 1973. When the bids came in the Siegler Construction Company bid of $1.49 a square foot was the lowest. Cali's bid was $1.70 a square foot. A meeting between Reitman and Cali was scheduled for May 3, 1973 to review the bids, inasmuch as Cali had the "last look." Suddenly, however, at the beginning of May the Cali-Reitman deal came to an abrupt halt; Blau and Reitman learned accidentally that Alfieri had acquired the subject land. Actually, Cali through Alfieri had entered into an agreement of sale with

a nominee of Alfieri, Creston Realty, Inc., on April 18, 1973, subject to a contingency made dependent on what test borings would disclose.

It appears that Alfieri and Cali had met and discussed the property beginning in January or February 1973, and by March 16, 1973 they had reached a meeting of the minds that Alfieri would purchase the entire property from Cali for $44,696 an acre.*fn3 The purchase contract between Alfieri and Cali was kept secret from both Blau and Reitman. When Mandelbaum and Zimmel learned of the Alfieri purchase, Seminara at first denied that the property had been sold to Alfieri. On April 25, 1973, even after Cali had executed the contract for the sale of the property to Alfieri, Cali submitted a bid in his own name to build and lease to Reitman. This bid of $1.70 a square foot had been supplied to Cali by Alfieri.

When plaintiff and Reitman learned of the sale to Alfieri they cancelled a meeting scheduled with Cali for May 3, 1973. Mandelbaum then asked Alfieri to meet with Reitman and him at Reitman's office on May 4, 1973.*fn4 This meeting was attended by Reitman, Alfieri, Stein, Mandelbaum and Lowenstein. A long-term lease to Reitman was discussed. Alfieri refused to recognize plaintiff as a broker or to pay any commission, notwithstanding Reitman's contention that since Alfieri's bid and price with respect to the lease was that originally submitted by Cali and was to include a commission, it should be paid by Alfieri. Subsequently, a 20-year lease was negotiated between said Creston Associates and Galsworthy, Inc., one of the Reitman defendants, which did not provide for the payment of any commission. Additional

pertinent facts will be mentioned in conjunction with a discussion of the specific arguments.

Unfortunately there was no pretrial conference in this fairly complicated case and, as a result, although extensive depositions and other discovery had taken place in advance of the trial, the issues and claims were not as well defined as they might otherwise have been.

At oral argument counsel for the Alfieri defendants candidly conceded that the jury could have properly found a verdict against them on the thesis advanced by plaintiff. He asserted, however, that prejudicial errors committed by the trial judge so tainted the verdict that they are entitled to the relief sought. Before proceeding to a consideration of the alleged errors we need to refer to the nature of the tort for which plaintiff sought to recover.

The law not only protects one from unjustifiable interference with one's contract by another but it also protects a person's interest in reasonable expectation of economic advantage. Harris v. Perl , 41 N.J. 455, 462 (1964); Mayflower Industries v. Thor Corp. , 15 N.J. Super. 337, 339 (Ch. Div. 1951), aff'd o.b. 9 N.J. 605 (1952). One who unlawfully interferes with that interest will be held liable for the damage sustained by the victim of that interference. Mayflower Industries v. Thor Corp., supra at 339. Accordingly, the right to pursue the real estate brokerage business is one of the property rights or interests which the law protects against unlawful interference. Louis Kamm, Inc. v. Flink , 113 N.J.L. 582 (E. & A. 1934). If unlawful means are employed, such as fraud or intimidation, or if the means consist of acting without justifiable cause (malice) so that a person suffers injury to his business, he may secure redress for his damage. McCue v. Deppert , 21 N.J. Super. 591 (App. Div. 1952). There must be proof not only of the unlawful, intentional interference with the prospect of reasonable expectation of economic advantage, but also proof that if there had been no interference there was a reasonable probability that the victim of the interference

would have received the anticipated economic benefits. Myers v. Arcadio, Inc. , 73 N.J. Super. 493, 498 (App. Div. 1962).

As stated in Sustick v. Slatina , 48 N.J. Super. 134 (App. Div. 1957):

In this area of the law the use of such expressions as conspire, unlawful, malicious, etc., has been criticized as beclouding judgment and clear thinking in the formulation of rules of liability. See Weinstein v. Clementsen , 20 N.J. Super. 367, 371 (App. Div. 1952). Yet a degree of generality in the criteria which will suffice to spell out liability in any given case of this kind is unavoidable. The essence of the cases in this field is that in adjudging whether what the defendant has done is actionable, i.e. , not done in the exercise of an equal or superior right, the ultimate inquiry is whether the conduct was "both injurious and transgressive of generally accepted standards of common morality or of law." Di Cristofaro v. Laurel Grove Memorial Park , 43 N.J. Super. 244, 255 (App. Div. 1957). In other words, was the interference by defendant "sanctioned by the 'rules of the game.'" 1 Harper and James [Torts], op. cit. supra , § 6.11, p. 510 [1956]; cf. Trautwein v. Harbourt , 40 N.J. Super. 247, 267, 268 (App. Div. 1956). There can be no tighter test of liability in this area than that of the common conception of what is right and just dealing under the circumstances. Not only must defendants' motive and purpose be proper but so also must the means. Louis Kamm, Inc., v. Flink, supra (113 N.J.L. , at p. 589). [at 144]

Of course the law affords protection of a business entrepreneur only as against wrongful acts of third persons -- not against fair and legitimate competition. McCann v. Biss , 65 N.J. 301 (1974); George F. Hewson Co. v. Hopper , 130 N.J.L. 525 (E. & A. 1943); Sustick v. Slatina, supra; Weinstein v. Clementsen, supra. See also, Ass'n Group Life, Inc. v. Catholic War Veterans , 120 N.J. Super. 85, 98 (App. Div. 1971), mod. 61 N.J. 150 (1972).

We are satisfied in the light of the foregoing that the trial judge properly submitted to the jury the issue of whether the Cali defendants or the Alfieri defendants, or both, unjustifiably interfered with plaintiff's reasonable expectation of compensation for its services as a broker.

Neither our own endeavors nor those of counsel have produced any case with a similar factual pattern. All of the successful brokerage commission tortious-interference cases in our own State follow a pattern whereby one of the parties to a sale has by fraud, deceit or subterfuge endeavored to escape payment of commissions on sales of real estate. The instant case presents a novel factual pattern. But each case must be decided upon individual facts. Myers v. Arcadio, Inc., supra. As stated by Judge Conford for the court in Di Cristofaro v. Laurel Grove Memorial Park , 43 N.J. Super. 244 (App. Div. 1957):

The very nature of the tort prohibits a "rule of thumb" in every case. 1 Harper and James, Law of Torts , § 6.12 at 515 (1956). But where it appears to the judge as in this case, from sufficient facts and the legitimate inferences therefrom, that the elements of the tort may be present, including conduct which was both injurious and transgressive of generally accepted standards of common morality or of law, it is then for the jury or the fact finder to decide the issue. Cf. Myers v. Arcadio, supra 73 N.J. Super. at 499.

Harris v. Perl, supra , particularly supports our view. In that case plaintiff, a licensed real estate broker, sought damages from, among others, her prospective purchasers of a residential property, under the theory that the latter had tortiously interfered with plaintiff's reasonable expectation of economic advantage. In upholding recovery, the court determined that defendants did not observe the rules of "fair play," because when they learned that Cronin, the owner, had transferred title to a bank during negotiations, said

"fair play would require a prospective purchaser to permit the broker to seek recognition by the owner, unenticed by the purchaser's offer to deal directly." (41 N.J. at 464).

In the instant case the contention that a broker takes his chances on whether his efforts result in the consummation of a sale or lease and that he "wins some and loses some" is beside the point. Nor is the contention that the Cali defendants and the Alfieri defendants, and in fact all the participants in the scene, were professionals a valid reason for a court's condoning sharp dealing.

What did the Alfieri defendants do to make them liable? The jury could have found that they procured the Cali defendants to continue to act as the owner of the land when in fact the latter no longer were the decision makers. Alfieri even decided the amount of rental under the lease (which included a commission) Cali was to have discussed with Reitman on May 3, 1973. They remained silent when they should have spoken. They permitted plaintiff as well as Reitman to perform as if the contemplated negotiations were progressing to a finality. They conspired to hold Reitman (and plaintiff) in limbo until they were ready to announce the new ownership and, in the meantime, to neutralize plaintiff from attempting to persuade its clients, the Reitman defendants, to look elsewhere for an appropriate site -- a site whose owner would pay commissions for plaintiff's services.

As a professional developer Alfieri learned from Cali that plaintiff was the procuring broker and was to be paid by Cali. Since the Alfieri defendants bought with the expectation of Reitman's lease being consummated, they wanted no one to "rock the boat."*fn5 They realized that as time went on Reitman was becoming more anxious to finalize the lease.

The fact that the Alfieri defendants stood to gain if they could avoid the payment of commissions is not relevant in this case. The motive of such a tortfeasor is relevant only to determine whether he acted out of sheer malice. If the alleged tortfeasor acted out of sheer malice, he will be liable on that account. If he acted out of a motivation to enhance his financial position -- for profit, then it is necessary for recovery that his conduct must have been transgressive of generally accepted standards of morality, i.e. , a violation of standards of "socially acceptable conduct." 1 Harper and James, op. cit. , § 6.11, at 511, 513-514; Prosser on Torts , at 978 (1964). The instant case was submitted to the jury on the thesis that the Alfieri group sought to profit by their perfidy, so that recovery against them required a finding by the jury that their conduct violated the accepted standards of morality.

The tort is not founded on a quantum meruit or quasi -contract thesis. Unjust enrichment of the tortfeasor is not an element of the tort. But such enrichment is a consideration not alone in connection with whether, as stated, a defendant's conduct was initiated out of sheer malice, but also in determining whether the moral standards have been violated. In Harris v. Perl, supra , the court said:

And so here, when the Perls accepted plaintiff's services, it was with the obligation which all decent men would recognize, that they would not line their purse with the money value of those services. It is of no moment that Cronin was not the agent of the bank and hence plaintiff had no authorization from the record owner. That fact provided an opportunity for overreaching rather than a justification for it. As we pointed out above, the law protects not only contracts but also the reasonable expectations of economic gain. In these circumstances fair play would require a prospective purchaser to permit the broker to seek recognition by the owner, unenticed by the purchaser's offer to deal directly. As we have already said, we have no doubt the bank would have dealt with plaintiff, but the Perls did not give her that opportunity. More than that, Perl lured plaintiff from stumbling upon the truth by deceitfully saying he would discuss the sale after the Labor Day weekend. [41 N.J. at 464]

A jury could have deduced that when the attempt to hide the Alfieri defendants' interest until they were ready to disclose it was thwarted by the accidental discovery of a rig on the land, then Alfieri learned two things from the almost immediate call from Mandelbaum for a meeting -- first, he could increase the rental to be charged by five cents a square foot and, second, Reitman's anxiety indicated he could even make the deal with Reitman without a payment of commission to Blau.

There is one final observation on this point. If Cali had entered into the lease with Reitman before the title passed to the Alfieri defendants, there was no doubt that plaintiff was legally entitled to a commission. Yet under the circumstances it was plain that Alfieri was working toward such a lease. However, instead of that, Alfieri's company (which had not yet acquired title to the land) continued with the negotiations on May 4, 1973 and thereafter, and executed the lease (escrowed until title to Creston Associates passed).

We suspect that our dissenting colleague differs from our view as to the liability of the Alfieri group for several reasons which we deem to be incorrect. First, her concept of the tort which is applicable here is overly restrictive. We acknowledge that this tort is not as well defined as some other torts -- probably because recovery in part depends upon whether a jury may conceive that defendant has not acted "according to the rules of the game." But her approach appears to us to be too legalistic and founded upon the proposition that since she regarded Alfieri as a competitor of Reitman, his actions were not to be fettered by concepts of morality. But the law is to the contrary, as already noted.

Our colleague ignores a most important inference from the facts which the jury detected from the circumstances -- Alfieri's conduct was dictated by the probability of Reitman's ultimate consummation of a lease and, with the passage of time, his increasing anxiety to relocate the site of his business operations. Instead of this theme she regards

his actions in the cold legalistic light that Alfieri bought with no guarantee of (and her personal belief that it was irrespective of) Reitman's very obvious desire to enter into a lease.

The facts permitted a jury to conclude that Alfieri knew almost from his original associations with Cali what Reitman was doing and planning, first, as to the purchase of the land and, second, as to entering into a lease. Also the jury could conclude that Alfieri's negotiations with Cali were either dictated by or were reactions to what he learned from Cali as to the course of Reitman's negotiations with Cali. As noted, Alfieri learned of the availability of the tract of land about the beginning of January. Not until after Reitman indicated his serious interest in negotiating a lease did Alfieri decide to buy the land on March 16, 1973.

But when he did decide to buy he cautiously waited until April 18, over a month later, before entering into a written agreement -- prior to which he had no obligation to purchase. Even after the agreement of sale from Cali to Alfieri was executed on April 18, 1973, Alfieri had for 21 days (to May 9, 1973) a right to withdraw from the agreement with impunity, on a claim that the soil tests were unsatisfactory for his purposes. Alfieri, both before and after April 18, 1973, using Cali as his negotiator, prepared the lease terms for the proposed lease with Reitman, including the amount of the rent, which purported to include plaintiff's commission. He intended to continue this charade to the point where the lease was about to be executed and then to announce his ownership and willingness to execute the lease -- without payment of commissions.

Contrary to our colleague's belief, which obviously differs from the legitimate inference that the jury drew, Alfieri was secretive all through this, and enlisted Cali's cooperation in his plan. There is no indication whose soil-testing rig was on the premises when accidentally discovered by Zimmel -- but except for that fortuitous observation this fiction would have continued on until, as stated, Alfieri was

ready for the denouement. By that time Reitman would have been in a tight spot. Alfieri calculated that at that time Reitman would proceed even if it meant he paid the commissions himself, but in any event Alfieri, as a stranger to plaintiff, would not be responsible for commissions.

All through this playacting -- as far back as January 1973 -- plaintiff continued to act as broker and continued to expect to be compensated for its services. In effect, the jury deduced that in the totality of the circumstances Alfieri's conduct was not that of a competitor, it was that of a predator -- that Alfieri's agreement to buy (first oral and then graphic) was not, as our colleague believes, the act of a fair competitor which terminated plaintiff's right to commissions, but was only an event in a master plan to achieve a profitable lease without an obligation to pay plaintiff, whose work made it all possible.

It may be rightfully assumed that ordinarily two land developers competing for the purchase of the same tract of land need not disclose their respective interests to each other. But in the instant case Alfieri and Reitman ceased being competitors for the same tract about the last week of February 1973, when Cali told Alfieri that Reitman no longer wanted to merely buy the land but wanted something entirely different -- a long-term lease with options to purchase at different intervals.

Our colleague is correct in saying that Alfieri had no assurance of Reitman's making a lease when he entered into the formal contract to buy the land on April 18, 1973 (with the release clause, as mentioned). But as stated in Jersey City Printing Co. v. Cassidy , 63 N.J. Eq. 759, 765 (Ch. 1902): "A large part of what is most valuable in modern life seems to depend more or less directly upon 'probable expectancies.' * * *"

Harper and James, op. cit. , at 518, elaborated on this theme of competition (although, as stated, we do not regard Alfieri as being a competitor of Reitman). They said:

The bounds of the privilege of competition may be described as limited by the actor's intention and by the character of the practices which he employs. Stated in other words, competition in trade, business or occupation affords a privilege to interfere with relations of prospective economic advantage (1) so long as the competitor's purpose is regarded as justifiable in the sense that it is within the limits of the accepted ethical code applicable to such transactions, and (2) so long as he does not resort to fraud or deception or other means which are regarded as "unfair" in the sense that they are outside the limits of current business mores.

Thus the trial judge, in recognition of these principles, as reiterated in the cited cases, supra , and particularly as quoted, supra , from Di Cristofaro v. Laurel Grove Memorial Park , told the jury:

and

Second, we conceive that our colleague has arrogated to herself the jury's function of drawing inferences from the facts.

Our dissenting colleague states that the record contained not the slightest suggestion that the price reflected the value of the lease. The brief answer is found in what has already been stated. The jury could infer that Alfieri's purchase was inspired and predicated upon the prospect of the lease. He even knew approximately what the lease rental would be by May 1, when he could still have withdrawn from the agreement of sale. So, while it may be true, as stated by her, that the ...


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