Hellrung v. Viviano
| Decision Date | 05 June 1928 |
| Docket Number | 20287 |
| Citation | 7 S.W.2d 288 |
| Parties | HELLRUNG v. VIVIANO et al. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; William H. Killoren, Judge.
“ Not to be officially published.”
Action by Joseph B. Hellrung against G. Viviano (otherwise known as Gaetano Viviano) and another. From the judgment, defendants appeal. Affirmed.
Lubke & Lubke, of St. Louis, for appellants.
Joseph C. McAtee, of Clayton, for respondent.
This is an action for breach of certain terms of a contract entered into in connection with the sale of real estate. The verdict of the jury was for plaintiff, in the sum of $1,750 and, from the judgment rendered, defendants have duly appealed.
The petition set up that, on April 6, 1922, plaintiff entered into a contract in writing with defendants to purchase two lots in a subdivision known as Northmoor Park, in St. Louis county; that, by the terms of such contract, it was provided that the sum of $5,200 should be paid for said property, of which amount the sum of $200 was then and there paid as earnest and part purchase money, and the balance, of $5,000, was subsequently paid, after an examination of the title; and that the cost of the improvement of the street, sewers, sidewalks, and curbing should be included in the purchase price.
It was further alleged that, in April, 1922, an additional agreement in writing was entered into between plaintiff and defendants, reciting the purchase of the property, and that the street, to be known as Northmoor Drive, was then unmade, and was without sewers, water, or gas, and providing that defendants, in consideration of the purchase by plaintiff of the property, guaranteed that the street, sidewalks, curbing, sewers, water pipes, and gas mains should be made and finished by January 1, 1923, without any expense or charge to plaintiff, and further providing that, in the event such improvements were not completed and paid for by said date, defendants would repurchase the property from plaintiff for the sum of $6,000, on or before September 1, 1923, and that plaintiff would reconvey the property to defendants upon payment to him of such sum.
It was then stated that the last-named contract was violated by defendants, in that they failed to make, complete, and pay for said Northmoor Drive, and the sewers, sidewalks, and curbing, by the date designated; that, by reason of such default, plaintiff was entitled to a payment from defendants in the sum of $6,000, upon reconveyance of the property to them; that he went to defendants, on or about January 2, 1923, either to have them pay over said sum upon a reconveyance of the property, or to have them carry out the original agreement; that defendants, for the purpose of avoiding the payment of $6,000 to plaintiff upon reconveyance of the property, persuaded plaintiff to forbear in his demand, and agreed, in consideration of his forbearance, to carry out the agreement recited and set forth in the original contract; that defendants requested plaintiff to erect a house upon the lots, and agreed to make the street, to be known as Northmoor Drive, at a cost of $20,000, which said sum defendants represented to plaintiff had been set apart for such purpose; and that plaintiff, relying upon said request, representation, and agreement, and being induced thereby, did erect a building upon said premises at a cost of $18,000.
It was further alleged that, in consideration of the agreement of defendants to perform their obligations under the original contract, plaintiff forbore in his demand for the sum of $6,000; that Northmoor Drive is, and at that time was, a residence street, and the property acquired by plaintiff was purchased by him for residence purposes; that defendants had refused to make and complete said street and the improvements thereon; that, by reason thereof, the sale and rental value of his premises had been depreciated to the damage of plaintiff in the sum of $5,000, for which sum, together with his costs, plaintiff prayed judgment. The answer of defendants was a general denial.
The propriety of the action of the court in permitting the case to go to the jury is in nowise questioned by defendants, in consequence of which, so far as a general statement of the facts is concerned, it will be enough to say that there was substantial evidence tending to prove each of the allegations contained in the petition. Certain incidental features of the case will be elaborated upon more fully, however, in the disposition of particular matters assigned as error, and relating to the admission...
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