Lewis v. Kaplan

• Citation: 5 S.W.2d 699
• Decision Date: 01 May 1928
• Docket Number: No. 19966.,19966.
• Parties: LEWIS et al. v. KAPLAN et al.
• Court: Court of Appeal of Missouri (US)

5 S.W.2d 699

LEWIS et al. v. KAPLAN et al.

No. 19966.

St. Louis Court of Appeals. Missouri.

May 1, 1928.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

"Not to be officially published."

Action by Jas. A. W. Lewis and others against May Kaplan and others. Judgment for plaintiffs, and defendants appeal. Motion to dismiss appeal overruled, judgment reversed, and cause remanded, with directions.

Superseding opinion, 300 S. W. 1041.

Marvin E. Boisseau, of St. Louis, for appellants.

W. Scott Hancock and Judson, Green & Henry, all of St. Louis, for respondents.

SUTTON, C.

This is an action to enjoin the erection of a store building on a lot in block No. 3909, in the city of St. Louis, situate at the southwest corner of Boyle and McPherson avenues. The bill was filed on January 20, 1926. A temporary injunction was granted on April 7, 1926. Upon final hearing of the cause, the court entered judgment sustaining plaintiffs' bill and ordering that the temporary injunction be made permanent. From this judgment defendants appeal.

The action was originally brought by Jas. A. W. Lewis, F. B. Chamberlain, Frank W. Corley, R. L. Thompson, Arthur A. Lueke, Winnifred Lueke, and Elizabeth M. Sheble, as plaintiffs. Since the cause has been appealed here, the death of Arthur A. Lueke has been suggested, and the cause has been revived in the name of his administratrix, Winnifred Lueke, who has as such administratrix entered her appearance to the cause in this court. After the death of said Arthur A. Lueke and before the revival of the cause in the name of his administratrix, the cause was argued and submitted here, and thereupon the plaintiffs' motion to dismiss the appeal herein was overruled, and the judgment of the circuit court was reversed and the cause remanded, with directions. The opinion under the former submission, which is reported in (Mo. App.) 300 S. W. at page 1041, was withdrawn, and the judgment rendered thereon was vacated, upon the suggestion of the death of Arthur A. Lueke, and the cause has been again argued and submitted here.

The lot in question fronts about 35 feet on the south side of McPherson avenue, and extends southwardly on the west side of Boyle avenue about 164 feet to an alley. There is a dwelling house on the north portion of the lot fronting on McPherson avenue. On December 3, 1925, Elizabeth M. Sheble was the owner of the property, and Arthur A. Lueke was in possession of the property and occupied the same for residence purposes, under a lease from Elizabeth M. Sheble for a term commencing July 18, 1924, and ending July 18, 1926. Arthur A. Lueke and Winnifred Lueke were husband and wife. Jas. A. W. Lewis, F. B. Chamberlain, Frank W. Corley, and R. L. Thompson are the owners of residence properties in the neighborhood of the Sheble property. Some of these properties are located on the north side, and some on the south side, of McPherson avenue. On December 23, 1925, negotiations resulted in a tentative contract between Elizabeth M. Sheble and May Kaplan for the sale of the Sheble property to May Kaplan, which contract was reduced to writing, as follows:

"This contract of sale witnesseth: That the undersigned seller herein has received of May Kaplan, as purchaser, the sum of $500, on account of and as part of the purchase money for the following described improved property situate in the city of St. Louis, Mo., and in city block No. 3909, said property fronting 35 feet, 6 inches, on the south side of McPherson avenue by a depth southwardly along the west line of Boyle avenue 164 feet, 10 inches, to an alley; thence westwardly along the north side of public alley 72 feet; thence northwardly 159 feet, 8 inches, to the south line of McPherson avenue, together with the improvements thereon, known as No. 4300 McPherson avenue. Subject to a lease now on said property expiring July, 1926. Subject also to seller obtaining permission from the lessee to deliver possession of the south 80 feet of said lot at any time after sale is closed, which property is hereby sold to said May Kaplan for the sum of $18,000, payable as follows: $10,000 cash on delivery of deed, of which the above payment is a part; balance to be evidenced by a principal note due 3 years after date, for $8,000, with interest at the rate of 6 per cent. per annum, payable semiannually, secured by deed of trust. Said deed of trust to cover the house and all of lot excepting the south 80 feet, which is to be unincumbered.

"This sale to be subject to there being no restrictions on said property against same being used for commercial purposes; otherwise this contract to be void and of no effect. * * *

"The title to said property to be perfect of record and in fact, and to be conveyed by warranty deed free from liens and incumbrances. * * *

"The sale under this contract to be consummated on or before 60 days. Failure or neglect of the purchaser to do so shall cause the above payment to be forfeited to the seller.

"This contract and sale to be approved by the owner on or before December 10, 1925, or the above payment to be returned to the purchaser."

May Kaplan, desiring to have immediate possession of the south 80 feet of the property and to erect a store building thereon, declined to sign said contract of sale unless Arthur A. Lueke, who held the property under the lease aforesaid, would sign an agreement to allow said Kaplan to have immediate possession of said south 80 feet of the property and to erect a store building thereon. Accordingly, on December 8, 1925, the said Arthur A. Lueke and Elizabeth M. Sheble signed the following agreement, indorsed on the back of said contract of sale:

"This agreement witnesseth: That whereas a certain lease on house and premises, 4300 McPherson, was made and executed by and between Mrs. Elizabeth Sheble, as lessor, and Arthur Lueke, as lessee, on July 18, 1924, and ending July 18, 1926, and whereas lessor has entered...