Protective Closures Co., Inc., Joseph R. Grenier and Ernest W. Dormeyer, Jr. v. Clover Industries, Inc.

WATERMAN, Circuit Judge

(concurring in the result):

In view of the disposition below a likely issue lurking in this case was not reached there. Now that issue attains prominence in that we are not following the approach taken by the judge below.

I concur in the result my colleagues have reached here but point out that it is reached ex cathedra, the rationale of our result not having been suggested to us by counsel. It is fully within the scope of appellate review for us to interpret what the parties meant by the written instrument they executed even if evidence of what they intended is not in the appellate record. However, I feel *814bound to state that in reaching our result we have done so in the belief that the language in paragraph 5 of the contract (footnote 2 of the majority opinion) is fairly interpretable, despite any guidance from the record, as substituting for the continuing vitality of a continuing injunction (modifiable by the court that issued it as circumstances might permit) a contractually arrived-at absolutely unmodifiable limitation.