Hickey v. Danna

• Decision Date: 15 May 1945
• Parties: Joseph F. Hickey, T. J. Hargadon and Gus Biston, Board of Agents of Moorlands Addition, Appellants, v. Paul Danna and Rose Danna, His Wife, Individually and as Copartners Doing Business as Paul Danna and Son, Respondents
• Court: Missouri Court of Appeals

187 S.W.2d 764

238 Mo.App. 839

Joseph F. Hickey, T. J. Hargadon and Gus Biston, Board of Agents of Moorlands Addition, Appellants, v. Paul Danna and Rose Danna, His Wife, Individually and as Copartners Doing Business as Paul Danna and Son, Respondents

Court of Appeals of Missouri, St. Louis District

May 15, 1945

Appellant's Motion for Rehearing Overruled June 12, 1945. Petition for Certiorari Denied September 4, 1945.

Appeal from the Circuit Court of St. Louis County; Hon. Raymond E LaDriere, Judge.

Affirmed.

Taylor R. Young and Alvin Goldman for appellants.

(1) A "hawker" or "peddler" is a person who carries his wares from house to house or place to place to sell them to each purchaser as he goes along, without previous order or agreement. City of Aurora v. Stevens (Mo. App.), 51 S.W.2d 547; City of Washington v Reed (Mo. App.), 70 S.W.2d 121; Campbell Baking Co. v. City of Harrisonville, Mo., 50 F.2d 670 (Eighth Circuit). (2) The owners of property in a Private Subdivision have the right to permit particular persons or groups of persons to enter the property and to prohibit or exclude other persons or groups from entering. 40 Am. Jur., sec. 54, p. 953; City of Clayton v. Nemours (Mo. App.), 164 S.W.2d 935. (3) When one enters upon private property, he impliedly agrees that he shall be bound by the rules and regulations of the owners of such property, of which he has either actual or constructive notice, and that he shall obey the same. Muse v. Whitney & Son, 56 S.W.2d 849; Weinsberg v. St. Louis Cordage Co., 135 Mo.App. 567. (4) A license issued by a municipality, or even the State, does not carry with it any authority to violate the law, or to violate rules, regulations or restrictions of the owners of private property. 40 Am. Jur., sec. 34, p. 942. (5) Rules, regulations and restrictions affecting real estate constitute an easement and property right, which may not be taken away against the will of the owner, and which the court should protect by injunction against any violation thereof. Porter v. Pryor (Mo.), 164 S.W.2d 353; Andrews v. Metropolitan Bldg. Co. (Mo.), 163 S.W.2d 1024; 26 C. J. S., p. 547, sec. 167. (6) When the language of a restriction is clear and unambiguous, its meaning must be given effect, without inquiry into the surrounding circumstances. Hickey v. Greengard, 176 S.W.2d 661.

Louis L. Hicks for respondents.

(1) The law favors free and unrestricted use of property and negative covenants should not be implied unless indispensable. 19 C. J. 895. (2) A restrictive covenant is not strictly an easement and does not run with the land in the true sense of that term and is enforceable in equity against all those who take the estate with notice thereof. 14 Amer. Jur., p. 659, sec. 326. (3) A covenant not to use property except in a certain way will not be inferred from the absence of words of restriction. Restrictive covenants are not favored in the law. Zinn v. Sidler, 268 Mo. 680. (4) Restrictions will not be extended by implication to include anything not clearly expressed herein. Chevrolet v. Regent Merc. Corp., 251 S.W. 421. (5) City may prescribe reasonable rules by which the privilege thus extended (use of streets in Moorlands) may be enjoyed by all members of the general public. City of Clayton v. Nemours, 164 S.W.2d 941.

OPINION

Bennick, C.

This is a suit to enjoin the alleged violation of a restriction against the carrying on of any business in Moorlands Addition, which is a private residential subdivision within the City of Clayton in St. Louis County.

The plaintiffs are the three individuals who compose the board of agents for the owners of the lots in the addition, and they bring this suit by virtue of the authority conferred upon them as agents to enforce the covenants, conditions, and restrictions contained in an indenture which was duly executed and recorded at the time of the laying out of the subdivision.

Moorlands Addition is bounded on the north by Wydown Boulevard, on the south by Clayton Road, on the east by Audubon Drive, and on the west by the dividing line between Hanley Road and Westwood Boulevard. The portion of the tract lying east of Glen Ridge Avenue is reserved for single dwellings, while the portion lying west of Glen Ridge Avenue is wholly given over to rental property. There are in all 429 lots in the addition, which are owned by 300 individual lot owners, some of whom reside in the addition, while others do not. At the time of the trial there were 900 families residing in the entire area.

As has already been indicated, the addition was originally planned and developed as a private residential subdivision, with the use of the lots made subject to numerous conditions and restrictions, among which was a restriction that "no business shall be carried on . . . in said tract of land".

The named defendants are Paul Danna and Rose Danna, his wife, who are sued both individually and as copartners doing business as Paul Danna and Son. Actually Rose Danna has no part in the business; and the whole controversy is with her husband, Paul Danna, who had admittedly been driving into Moorlands Addition for more than a year before the trial below.

Danna is a hawker or peddler of fresh fruits and vegetables, which he buys early each morning from commission houses in the City of St. Louis, and then promptly sells and delivers to individual customers residing on his route. He conducts his business from a light Ford truck which is equipped with a special body for carrying his produce; and he only operates in those communities where he has established customers who may be expected to buy with some degree of regularity. He does not cry his wares, but merely calls at the homes of his different customers, and if they have orders to give, he takes the orders and then returns to his truck to fill them. If a regular customer recommends him to some one else or informs him that some one else has expressed a desire to patronize him, he calls at such other person's home, but otherwise he solicits no new business, and confines himself to serving those with whom he has previously been accustomed to deal.

The evidence shows that Danna first began to enter Moorlands Addition when certain of his customers moved out into that territory and requested that he continue to serve them there as he had at their former locations. In the winter months he visits the addition on two days a week, and in the summer months on three days a week. Of the 900 families residing in the addition, there are some 40 or 50 who are his regular customers, and these find his service to be a great convenience in relieving them of the trouble and annoyance of going personally to the market for their supplies.

The testimony was uncontradicted that there had been no signs erected warning peddlers and the like to refrain from entering the addition; that it was further shown that other persons, and particularly the dairy companies, carried on their business inside the addition by precisely the same procedure as that which Danna followed.

The original complaint about Danna's activities was made by nine of the residents in a single block of Parkdale Avenue, which is one of the streets in the addition. The first attempt at his exclusion was by the threat of causing his arrest, which proved entirely unavailing when the Clayton police refused to make the arrest unless the complaining parties, or some one for them, would assume responsibility for the prosecution. So far as the police themselves were concerned, there was no occasion for interference, since Danna was conducting his business under the authority of a peddler's and hawker's license which had been issued to him by the City of Clayton, and for which he had paid an annual license fee of $ 20.

The moving spirit on behalf of the complaining parties was plaintiff Biston, the...