This case is similar to other precedents where instruments might have been drafted with greater precision but where particular covenants nonetheless were deemed to run with the land. See, e.g., Snow v. VanDam, 291 Mass. at 481, and cases cited ("In the absence of express statement, an intention that a restriction upon one lot shall be appurtenant to a neighboring lot is sometimes inferred from the relation of the lots to each other"); Baker v. Seneca, 329 Mass. 736, 739 (1953); Lipton Professional Soccer, Inc. v. Bay State Harness Horse Racing Breeding Assn., 8 Mass. App. Ct. 458 (1979); Atwood v. Walter, 47 Mass. App. Ct. 508, 512 (1999). See also Restatement (Third) of Property (Servitudes) §§ 2.2, 4.6 (2000); 9 Powell on Real Property § 60.04[3][b], at 60-54 to 60-55 (Rohan ed. 2000) (identifying factors courts rely upon to find devolution of the benefit in the absence of an express statement).
Well-Built states that by necessary implication Barbara had the right to impose restrictions and that, as successor to Barbara, Well-Built had and exercised the right to impose restrictions. Well-Built suggests that this court should apply the interpretation of contract rule expressed in Lipton Professional Soccer, Inc. v. Bay State Harness Horse Racing Breeding Ass'n. Inc., 8 Mass. App. Ct. 458, 463 (1979), and supply the omitted implication that Richard and Barbara intended that successors in title would impose restrictions, and further that such an implication satisfies the requirement that a covenant must be in writing and signed by the covenantor to run with the land In Lipton, the Appeals Court held that a restrictive covenant contained in a lease was appurtenant (ran with the land) to the racetrack land and enforceable by successors in title. 8 Mass. App. Ct. at 467.
See, e.g., Lipton Pro. Soccer, Inc. v. Bay State Harness Horse Racing & Breeding Ass'n, Inc., 395 N.E.2d 470, 473 (Mass. App. Ct. 1979) (evaluating “whether the restrictive covenant in . . . [a] Lease was personal to Bay State or whether it [wa]s appurtenant to the racetrack land and enforceable by Foxboro as Bay State's successor in title” and finding that the “covenant . . . [wa]s appurtenant to, and r[an] with, Bay State's racetrack land and is enforceable by Bay State's successors or assigns.”); § 74:18.
"A writing is interpreted as a whole, and all writings that are part of the same transaction are interpreted together." Restatement (Second) of Contracts § 202(2) (1979); see Lipton Professional Soccer, Inc. v. Bay State Harness Horse Racing, Inc., 8 Mass. App. Ct. 458, 395 N.E.2d 470, 473 (1979). A court sitting in diversity applies the choice of law provisions of the state in which it is located.
Kennedy Bros. v. Bird, 287 Mass. 477, 483 (1934). Lipton Professional Soccer, Inc. v. Bay State Harness Horse Racing Breeding Assn., 8 Mass. App. Ct. 458, 462-463 (1979). It also takes into account the situation of the parties when they entered into the contract and objects they sought to accomplish.
See Slater v. Easter, 3 Mass. App. Ct. 757 (1975); Leisure Sports Inv. Corp. v. Riverside Enterprises, Inc., 7 Mass. App. Ct. 489, 492-493 (1979) (option to purchase real estate could be exercised even after receipt of notice of termination of lease; compliance with lease not an implied condition). See also Dittemore v. Dickey, 249 Mass. 95, 104-105 (1924) (omission supplied only "if the instrument as a whole produces a conviction that a particular result was fixedly desired although not expressed by formal words"); Stop Shop, Inc. v. Ganem, 347 Mass. 697, 701 (1964) (agreement will not be "extended by implication unless the implication is clear and undoubted"); Lipton Professional Soccer, Inc. v. Bay State Harness Horse Racing Breeding Assn., 8 Mass. App. Ct. 458, 462-463 (1979); 11 Williston, Contracts § 1295 (3d ed. 1968). See generally and compare Farnsworth, Disputes Over Omission in Contracts, 68 Colum. L.Rev. 860 (1968).