December 3, 1964.
The case was submitted on briefs.
Arthur Brogna for the defendant.
John F.X. Gaquin Robert J. Sherer for the plaintiff.
Exceptions overruled. Appeal dismissed. 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 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.