(dissenting in part, concurring in part). I dissent in part from the opinion of my colleagues. My disagreement is limited to that portion of Judge Allen’s opinion which deals with the issue of the alleged tortious interference by Deitz with the contractual rights of Meyering.
I do not agree that the testimony and exhibits would support a permissible inference by the trier of fact that defendant Deitz tortiously sought to thwart consummation of the contract between Meyering and Russell.
Other than the perfectly legal act of making an offer to purchase the involved property with knowledge of the Meyering land contract nothing appears of record which would indicate that Deitz *710resorted to any unlawful methods of competition or used illegal means to obtain the property from Russell at Meyering’s expense.
Where "dickering” as we know the term in our system is going on there is nothing legally impermissible in trying to better an offer that has had conditional acceptance only.
To me there must be more than simple outbidding, and even outmaneuvering. A free economic society can be so hampered by limitations upon the exercise of business judgment or acumen that backyard discussions can grow into executed contracts supporting actions for tortious interference.
I don’t see anything defendant Deitz did in this case other than make a more acceptable offer to the fee owner of a parcel of realty. The title to the parcel was, to say the least, somewhat murky. There was an outstanding land-contract vendee’s interest which was involved in litigation. There also was an outstanding mortgage.
It would be interesting to follow up all the possibilities the learned trial judge would have had to consider in order as he said to put the parties "in as nearly as possible * * * the position they would have occupied [presumptively August 5, 1969] had the conveyance been made when required by the contract”.
As of that date Russell would have had to specifically perform his "contract” with Meyering. I suppose.that means Russell would have had to execute a land contract from himself to Meyering. This contract was subject to a partially foreclosed land-contract vendee’s interest belonging to Lynch. Russell had instituted foreclosure proceedings of this interest but was dissátisfied with the verdict of the district court because the verdict did not enforce the acceleration clause in that contract *711and he appealed on that ground to the circuit court. The circuit court had not acted as of August 5, 1969, so really no one knew at that time how much money was necessary to make the contract current or pay it up. Meanwhile, back at the courthouse, as far as the record showed, Russell had the fee title to the property subject to a mortgage of over some $10,000.
Enter Deitz. I am sure he realized that the property was potentially more valuable than the sum total of the land contract interests and the mortgage. So Deitz said to Russell, in effect, "I’ll take the whole thing over, assume the mortgage and assume Lynch’s and Russell’s liabilities and obligations together with some additional cash”.
It would seem to me that Mr. Russell would have needed very little pushing, influencing or other tortious activity on the part of Mr. Deitz to accept the latter’s offer.
Specifically I find no evidence sufficient to establish any question of fact as to what it is Deitz is supposed to have done to induce the breach of the purchase agreement.
There are numerous references in the record to what "she”, apparently Miss Farber, did and a few to what "they”, apparently Farber and Russell, did.
My colleague says:
"The record is conflicting as to the Russell-Deitz relationship after the initial July contact. Deitz testified he waited three or four weeks and did not contact Russell again until after August 5.”
All I can find in this record at most is an equipoised situation in which Meyering alleges Deitz must have influenced Russell to his detri*712ment because the deal he made with Russell did not go through.
Deitz contends Russell maintained he could not sell the property until after August 5. Up to this point I find nothing illegal or even unethical about anything anyone did. Finally, two days after the expiration date of the August 5 deadline Deitz, as certainly was his right, called Russell and asked him if the building was available. Russell said it was. From there on Deitz worked out the details of the sale with Russell’s attorney.
I am a sworn enemy of substituting my judgment for the trial judge on fact questions. I am also a card-carrying believer that the plaintiff bears the burden of making out a prima facie case of whatever he alleges. To me plaintiff’s case completely fails of proof.
I would affirm the grant of specific performance as between Russell and Meyering. I would reverse as to the money judgment against Deitz.
Thus while I conclude that Deitz did not tortiously interfere with the purchase and sale agreement between Russell and Meyering, this conclusion in no way prohibits me from holding there was a valid enforceable agreement between Meyering and Russell and that the trial court could properly order its performance. Neither does it mean that Deitz, as no wrong-doer, should lose the property he bought, and all the money he paid out for it including any taxes and other payments, if any, to clear and protect the title.
Thus I would order an accounting in the trial court to determine what is owed to Deitz and impress a lien for that amount upón the involved realty.
Nobody in this lawsuit had a corner on the equities. Meyering could have had the property at *713his agreed price and under his agreed terms by making the payment on time, into court if need be, and demanding performance by Russell.
Russell could have stayed out of the litigation by fulfilling his contract with Meyering. Deitz could have avoided his involvement by checking the record title and finding the lis pendens had been filed before he consummated his agreement with Russell.
Only in this way do I see that all the parties are put back where they were when they all set in motion what ended up in this tangled web.
I so vote. No costs to anyone. Nobody won or lost conclusively.