Blair v. Cifrino

• Decision Date: 17 April 1969
• Citation: 355 Mass. 706,247 N.E.2d 373
• Parties: Paul C. BLAIR v. Paul J. CIFRINO et al. . Suffolk
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 373

247 N.E.2d 373

355 Mass. 706

Paul C. BLAIR v. Paul J. CIFRINO et al.

Supreme Judicial Court of Massachusetts. Suffolk.

Argued Jan. 7, 1969.

Decided April 17, 1969.

Jerome Gotkin, Boston (Stephen M. Honig, Boston, with him) for plaintiff.

Robert F. Sylvia, Boston (Phil D. Fine, Boston, with him) and George E. Lodgen, Boston (Geoffrey D. Wyler, Boston, with him) for defendants.

Before WILKINS, C.J., and SPALDING, WHITTEMORE and REARDON, JJ.

REARDON, Justice.

The plaintiff appeals from final decrees entered on his bill brought under G.L. c. 231A. The record on which we act puts the problem as follows.

The bill alleges that bids were solicited by the trustees of the Metropolitan Transit Authority (MTA) for the purchase or other disposition of land in Dorchester, Massachusetts, and that the plaintiff submitted a bid for a fifty year lease on certain terms. The defendants, directly or through a nominee, submitted two bids to purchase the premises, one of which was accepted, to which action the plaintiff objected on the ground that his bid was more favorable to the MTA. Negotiations then commenced between the parties in this suit and after a year, on or about June 5, 1964, two written agreements were entered into, one being a 'Commission Agreement' between one of the defendants, Supreme Markets, Inc. (by Paul J. Cifrino), and the plaintiff. This agreement, on the terms of which there is no debate, provided, inter alia, that the plaintiff's services would be retained for a stated fee in connection with the development of a shopping center project if the defendants' bid for the premises was accepted. The bill further alleges that a second agreeent, 'Sharing Agreement,' was also concluded on the basis of a letter dated June 5, 1964, ¹ forwarded to the plaintiff by the defendant Paul J. Cifrino, the receipt of which caused the plaintiff by letter dated June 9, 1964, to the MTA to 'withdraw' from the position he took concerning his bid for a lease on the MTA premises, which were subsequently conveyed to the defendant trustees.

The defendants admit the withdrawal of the plaintiff from his position that he was the high bidder for the premises but claim he withdrew on the basis of the execution of the 'Commission Agreement' and that, in any event, his claim had no status since he had been advised in writing by the MTA on April 10, 1964, that the property was not advertised for lease but for sale and could not have been leased under relevant statutes pertaining to the advertisement. ² In general, the defendants' claim is that relative to the 'Sharing Agreement' no contract existed, and if one did it was too vague, uncertain and indefinite to be enforced.

1. We deal first with the plaintiff's statement of his intention to prove the validity of his claim that he was the highest bidder for the property and that he withdrew this claim 'solely in consideration of and in reliance on the 'Sharing Agreement. " 'It is well settled that the abandonment of a claim believed to be well founded and made in good faith and 'not frivolous, vexatious or unlawful, although not of such character in law or fact or both as finally to commend itself to the judgment of the tribunal of last resort, is the surrender of a thing of value and is a sufficient consideration for a contract.' Codman v. Dumaine, 249 Mass. 451, 457--458, 144 N.E. 408, 411.' Higgins v. Gilchrist Co., 301 Mass. 386, 390, 17 N.E.2d 160, 161; Melotte v. Tucci, 319 Mass. 490, 492, 66 N.E.2d 357. That the MTA had advised the plaintiff it did not recognize his position would not of itself weaken his assertion of consideration. However, it appears weakened by the 'Commission Agreement' in which it was provided in behalf of one of the defendants, Supreme Markets, Inc., 'This agreement will not take effect and will be cancelled if we are not awarded the development of the Fields Corner Center,' an event which took place. Not only had the plaintiff agreed to this but he had, when he brought his bill, received sizable sums of money under the terms of the 'Commission Agreement.' He was not thus in a posture to maintain with propriety the validity of his claim against the MTA and his determination not to press it as consideration for the 'Shaing Agreement,' for he had already surrendered it and could not bring it to bear on the 'Sharing Agreement.'

2. We thus move to consideration of the question whether the contents of the letter dated June 5, 1964, are sufficient to support an action of contract. Much depends on whether we view this letter as complete in itself or whether it is rather an important opening phase of what might develop into protracted negotiations. The 'Sharing Agreement' is concerned with the long range development of a shopping center. The parties were responsible and experienced persons with evident knowledge of what that entailed and with the host of details to be covered in any writing which might eventually reflect their complete understandings and respective undertakings. The letter sets out that it 'is intended' to outline the commitment which the defendant Paul J. Cifrino was willing to make. It left to be worked out 'the most feasible method of making payment' of certain moneys to be earned by the plaintiff. The final sentence was, 'Naturally we can work up something more legal than this letter.' The plaintiff was to commence...