In this action of tort for abuse of process the judge found for the defendant. The plaintiff presented seventeen requests for findings and rulings, all of which were granted. The sole question arises from the plaintiff's exception to the denial of its motion for a new trial. The grounds of the motion are that the general finding for the defendant is: (1) inconsistent with the judge's rulings and findings, (2) against the weight of the evidence, and (3) unfair and unjust. There was no error. The judge could have found that, although the attachment was excessive, the process was not "used to accomplish some ulterior purpose for which it was not designed or intended, or which was not . . . [its] legitimate purpose." Gabriel v. Borowy, 324 Mass. 231, 236. And he could likewise have found, despite the evidence adduced by the plaintiff, that damage, an essential element of the tort, had not been established. See Quaranto v. Silverman, 345 Mass. 423, 427.

Exceptions overruled.

The employee sought workmen's compensation benefits alleging that on February 27, 1957, while in the employ of the town of Arlington and while lifting heavy barrels onto a refuse truck, he sustained a heart attack from overexertion. Following his death on June 7, 1961, his widow filed a claim under G. L. c. 152, Section 31, and as administratrix of the employee's estate. There was evidence that for approximately one year before February 27, 1957, the employee had a history of cardiovascular disease. A medical expert, who testified in behalf of his widow, was unable to relate the employee's death to the incident of February 27, 1957. The single member did not err in finding insufficient evidence to link the incident and the employee's disability. Her findings, which were adopted by the reviewing board and which are supported by evidence, must stand. Josi's Case, 324 Mass. 415, 418. See Hartman's Case, 336 Mass. 508, 511.

Decree affirmed.

This is an action of contract to recover damages for breach of a written agreement to purchase the plaintiff's stock in a corporation which owns and operates WORL, a small "daytime" radio station. The only evidence before the judge was the auditor's report and the exhibits. The judge denied the defendant's motion for judgment on the report and found for the plaintiff. The agreement in question contained a warranty by the plaintiff that "no material adverse change in the financial condition and affairs of . . . [the corporation], other than those resulting from normal station operations, has taken place since June 30, 1958, nor will take place up to the time of closing." In finding that no breach of this warranty occurred, the auditor

Page 778

could properly consider prior negotiations to determine the intent of the parties as to the meaning of ambiguous terms. Gainsboro v. Shaffer, 339 Mass. 1, 3. He concluded that, by repudiating the agreement, the defendant committed an unexcused breach thereof. The report is extensive and contains detailed subsidiary findings which amply support that conclusion. The judge was therefore correct in finding for the plaintiff in view of the auditor's findings. Kelleher v. Farrell, 339 Mass. 756, 758-759. Carlo Bianchi & Co. Inc. v. Builders' Equip. & Supplies Co. 347 Mass. 636, 647.

Exceptions overruled.

Appeal dismissed.