Hickey v. Greengard

• Decision Date: 04 January 1944
• Docket Number: No. 26369.,26369.
• Citation: 176 S.W.2d 661
• Parties: HICKEY et al. v. GREENGARD et al.
• Court: Missouri Court of Appeals

176 S.W.2d 661

HICKEY et al. v. GREENGARD et al.

No. 26369.

St. Louis Court of Appeals. Missouri.

January 4, 1944.

Rehearing Denied January 21, 1944.

Appeal from Circuit Court, St. Louis County; E. McDonald Stevens, Special Judge.

"Not to be reported in State Reports."

Suit by Joseph F. Hickey and others, individually and as agents of Wydown Court, against Emanuel Greengard and another, to enjoin violation of a restrictive covenant. From a judgment for plaintiffs, defendants appeal.

Affirmed.

Edward K. Schwartz, of St. Louis, for appellants.

Buder & Buder, of St. Louis, for respondents.

SUTTON, Commissioner.

This is a suit in equity for an injunction, commenced on September 23, 1941, in the Circuit Court of St. Louis County, seeking to permanently enjoin defendants from selling spirituous and malt liquors on their premises in Wydown Court, a subdivision in St. Louis County.

There are twenty-seven lots in the subdivision. There is a street fifteen feet wide running north and south through the subdivision known as Forest Court. Wydown Boulevard is on the north side of the subdivision. Defendants own and operate a drug store on the southeast corner of Wydown Boulevard and Forest Court. Licklider owns and operates a grocery store on the southwest corner of Wydown Boulevard and Forest Court. These buildings front on Wydown Boulevard. There are seven lots fronting on the boulevard.

An indenture, duly filed and recorded in the office of the recorder of deeds, contains, among others, the following restriction: "No spirituous or malt liquors of any kind shall ever be sold in any part of said Wydown Court, nor shall any nuisance of any kind be established or maintained therein."

Plaintiffs Joseph E. Hickey, Adele L. Weaver, and Alexander H. Sullivan are agents of the subdivision and are also owners of lots in the subdivision. They sue both as agents of the subdivision and individually as owners of lots.

There is no dispute that defendants sold spirituous and malt liquors at their drug store in the original package, and there was evidence to show that they sold beer and permitted it to be drunk in the store. They displayed in their front window advertisements of liquors for sale, and an electric sign was maintained on the wall, where liquors were kept, reading "Gold Crest Liquor Store." About eighty square feet of the wall space of the store was used for the display of liquors. This was about ten per cent of the wall space. Sales of liquor, beer and wine constituted about one-third of the total sales of the store.

The evidence shows that Licklider, whose store was on the southwest corner of Wydown Boulevard and Forest Court, just across the street from defendants' store, for a time sold beer in the original package.

For a number of years prior to the institution of this suit the agents of the subdivision periodically warned the proprietors of these stores to cease selling liquors, and got from them promises that they would do so, but they nevertheless continued to sell, or would stop for a while and then begin again.

The evidence shows that finally Licklider in obedience to these warnings ceased selling, but defendants continued to sell, insisting that selling in the original package was not a violation of the restriction. They admit that they sold the liquors for beverage purposes. For a time two of the agents occasionally purchased liquor, wine or beer at one or the other of the two stores engaged in selling it.

The lots fronting on Wydown Boulevard were set apart in the indenture for business buildings. The rest of the lots were restricted to multiple dwellings, such as apartments and flats. Only two of the agents and very few of the other lot owners lived in the subdivision.

The trial resulted in a judgment permanently enjoining defendants from selling spirituous and malt liquors on their premises in the subdivision. Defendants appeal.

Defendants insist that in construing the restriction involved in this case consideration should be given to surrounding circumstances so as to give effect to the real intention of the parties; that by reason of the federal prohibition laws then in force the sale of malt and spirituous liquors, except for medicinal purposes, was unlawful at the time the indenture was executed; that it is not reasonable to conclude that, notwithstanding this exception to the prohibition laws, the parties intended to shut off this lawful activity of a pharmacy; and that the clear purpose of the restriction, as gleaned from the language used as well as from the circumstances surrounding its creation, was to forbid the operation in the subdivision of a tavern or a saloon or other place where spirituous and malt liquors are sold by the drink.

Defendants insist that since the indenture was executed during the era of federal prohibition, this warrants the construction of the restriction as prohibiting only that which was then unlawful, and not as prohibiting the sale of liquors for medicinal purposes, which was then lawful. We do not think this is so. Where the language of a restriction as to the use of property is clear and unambiguous, its meaning must be given effect, and it is neither necessary nor proper to inquire into the surrounding circumstances for aid in its construction. Andrews v. Metropolitan Bldg. Co., 349 Mo. 927, 163 S.W.2d 1024; Grandmont Improvement Ass'n v. Liquor Control Commission, 294 Mich. 541, 293 N.W. 744; Isaacs v. Schmuck, 245 N.Y. 77, 156 N.E. 621, 623, 51 A.L.R. 1454.

The language used in creating the restriction in the present case is plain, simple, and unambiguous. To adopt defendants' view would result in an unwarranted modification of the language used. To construe this plain, simple, and unambiguous language, as merely forbidding the operation in the subdivision of a tavern or saloon where spirituous and malt liquors are sold by the drink, and as not forbidding the sale of such liquors in the original package or for medicinal purposes would be to read into it exceptions the parties concerned did not see fit to write into it. There is no exception as to sales in the original package or for medicinal purposes.

It is a matter of common knowledge that the business of selling spirituous and malt liquors within the confines of restrictions imposed by law or covenant has a habit of degenerating into unlawful and unauthorized sales induced by a desire for larger profits. It was doubtless a consideration such as this that actuated the parties in creating in the present case a restriction absolutely forbidding the sale of spirituous and malt liquors for any purpose.

This view finds support in what was said by the court, speaking through Chief Justice Cardozo, in Isaacs v. Schmuck, supra, as follows: "We think the conclusion is inevitable that the sale of liquor for any purpose was within the range of this covenant at the time of its creation. There was no exception in favor of wholesale dealers or of pharmacists or physicians. If this is so, we may not say that the range of the covenant has been narrowed by the adoption of the Eighteenth Amendment and the statutes passed thereunder. No doubt the primary object of the covenant was to prevent the unrestricted sale of liquor as a beverage. Such a restriction might be useful in tending to reduce intemperance and in improving the quality of the neighborhood, and hence the value of the property. * * * On the other hand, the opportunity for evasion is at hand so long as sales are made at all, even by wholesalers or pharmacists, a fact notorious to-day and sufficiently attested by the exaction of a license. Judicial notice of these conditions has been taken by our highest court. `The opportunity to manufacture, sell and prescribe intoxicating malt liquors for "medicinal purposes," opens many doors to clandestine traffic in them as beverages under the...