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 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.
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." Higgins v. Gilchrist Co. 301 Mass. 386, 390. Melotte v. Tucci, 319 Mass. 490, 492. 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
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 sharing in the development "20 years from opening," a date not otherwise defined. As the defendants have pointed out, "the 20 year amortization factor" to be deducted from "gross rental" was mentioned with no more definite statement of how and from what base amortization would be figured. The letter was silent on a large number of other items which are routinely covered in contracts of the length and complexity of that upon which the parties were to embark. Without further discussion of them, it is our view that the letter was too indefinite to be enforced as an agreement. The parties on the exchange of the letter were in the state of "imperfect negotiation." Rosenfield v. United States Trust Co. 290 Mass. 210,
3. We thus conclude that the judge was not in error in decreeing that the letter of June 5, 1964, dealing with the "Sharing Agreement" did not constitute a contract and was not contractually binding on the defendants, and that also, for the reasons assigned above, it was too vague, indefinite, and uncertain to be enforced as a contract. Each final decree is modified by striking out paragraph 5 dismissing the bill, and as so modified is affirmed.
This letter is intended to outline the commitment which I made to you at lunch and which can be formalized in any way you wish.
Assuming that the Fields Corner Center is developed by both of us together along the lines spelled out in today's letter we agree that you will share additionally in the development of the 2/3rds of the center not developed for the market as follows for 20 years from opening.
As a sort of example: if the basic rents in a given year were sufficient exactly to carry the full amortization, the land rent, the taxes and upkeep, and if there should also be additional percentage rental income, then this percentage income would accrue to you.
I trust that I have conveyed what is clearly in my mind but what is cumbersome to express. Naturally we can work up something more legal than this letter.