The question of malice remains to be considered. The tort is sometimes referred to as 'malicious' inducement of breach of contract but, as stated in the Restatement, Sec. 766, Comment m: 'There are frequent expressions in judicial opinions that 'malice' is requisite for liability in the cases treated in this Section. But the context and course of decision make it clear that what is meant is not malice in the sense of ill will but merely purposeful interference without justification.'
Some Pennsylvania decisions, particularly Caskie v. Philadelphia R. T. Co., 334 Pa. 33, 5 A.2d 368, seems to require more than this objective test and to take into consideration the defendant's motives, but subsequent decisions make it clear that what was meant by 'malice' was never more than the intentional doing of a wrongful act without legal or social justification. "'When one has knowledge of the contract rights of another, his wrongful inducement of a breach thereof is a willful destruction of the property of another and cannot be justified on the theory that it enhances and advances the business interests of the wrongdoer.' * * * Maliciousness 'does not necessarily mean actual malice or ill will, but the intentional doing of a wrongful act without legal or social justification."' Ramondo v. Pure Oil Co., 159 Pa.Super. 217, 48 A.2d 156, 160. See also Eddyside Co. v. Seibel, 142 Pa.Super. 174, 181, 15 A.2d 691.
The defendant had the benefit of legal advice, but there is nothing to show what that advice was and, with the law in the uncertain state in which it was, I can hardly imagine his able and experienced counsel telling him that he could proceed with assurance that his legal position was sound and unassailable. What is plain is that he was so determined to obtain the property in question that he was perfectly willing to ignore any and all risks involved.
To the plaintiff he said: 'Frank, you are stepping on dangerous ground; I am going to have the theatre if it is the last thing I do. You know I have a suit with Warner Brothers * * * . You must make a deal with me. You are dealing with a dangerous man.' And to Friedmann, the agent, he said, 'Well, you know me for a long time, and you know that I will stop at nothing to get that property now. I want that lease and I am going to get it, no matter what happens. * * * You know I can do anything. I have plenty of money and I will stop at nothing to get that lease. * * * '
In all this there was no ill will toward the plaintiff. At one time he said to the plaintiff: 'Frank, I haven't got a thing against you. You are a square shooter. * * * I am out here to make a deal.' Ill will, however, is not a necessary element. The defendant's utterances clearly indicate a complete disregard of the plaintiff's rights so far as they might stand in the way of his getting the property. It seems clear that if the Pennsylvania decisions do require anything beyond the intentional doing of a wrongful act without legal justification -- a doubtful matter -- that something is supplied by the defendant's attitude as evinced by his own statements.
The following additional fact finding is made in connection with the decree.
The defendant with knowledge of the contract rights of the plaintiff maliciously and without reasonable justification or excuse intentionally and knowingly induced the trustees to breach the contract to the plaintiff's damage.
The following additional conclusion of laws is made:
The plaintiff is entitled to recover damages consisting of expenses of litigation and reasonable counsel fee incurred in connection with the with the recovery of the property which is the subject of this litigation.
Two matters remain to be mentioned in order to make the ruling clear, (1) the counsel fee and expenses are not allowed as costs of the case but as damages, (2) no counsel fee or expenses can be allowed for that part of the litigation which concerns the recovery of damages. Only that part of the plaintiff's counsel fee and expenses will be included which is properly allocable to his action for equitable relief.
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