Lewis v. Kaplan, No. 19966.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtSutton
Citation300 S.W. 1041
PartiesLEWIS et al. v. KAPLAN et al.
Decision Date10 January 1928
Docket NumberNo. 19966.
300 S.W. 1041
LEWIS et al.
v.
KAPLAN et al.
No. 19966.
St. Louis Court of Appeals, Missouri.
January 10, 1928.
Rehearing Denied January 24, 1928.

[300 S.W. 1042]

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

Action by Jas. A. W. Lewis and others against May Kaplan and another, doing business as the Harris Realty Company, and Edward E. Christopher, as Building Commissioner of the City of St. Louis, to enjoin erection of store building. Temporary injunction was granted, and, on final hearing, the court entered judgment sustaining plaintiffs' bill and ordering injunction to be made permanent. From this judgment, defendants appeal. Reversed and remanded, with directions.

Superseded on rehearing, see 5 S.W.2d. 699.

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

W. Scott Hancock, of St. Louis, for respondents.

SUTTON, C.


This action is brought 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 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, plaintiff Elizabeth M. Sheble was the owner of the property, and plaintiff Arthur A. Lueke was in possession of the property, and occupied the same for residence purposes, under a lease from plaintiff Sheble for a term commencing July 18, 1924, and ending July 18, 1926. Plaintiffs Arthur A. Luelte and Winnifred Lueke are husband and wife. Plaintiffs 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 between plaintiff Sheble and the defendant May Kaplan resulted in a tentative agreement for the sale of the Sheble property by plaintiff Sheble to the defendant Kaplan, which agreement 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, Missouri, 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 three years after date, for $8,000.00, with interest at the rate of six 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...

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3 practice notes
  • State ex rel. Rose v. Webb City, No. 31288.
    • United States
    • United States State Supreme Court of Missouri
    • October 19, 1933
    ...Bank of Cape Girardean v. Foster, 271 S.W. 537; State v. Hiller, 295 S.W. 133; City of Ferguson to Use of United Const. Co. v. Steffen. 300 S.W. 1041; Lohmeyer v. St. Louis Cordage Co., 214 Mo. 690, 113 S.W. 1108; Syz v. Milk Wagon Drivers' Union, 18 S.W. (2d) 444; St. Joseph v. Georgetown ......
  • Lewis v. Kaplan, No. 19966.
    • United States
    • Court of Appeal of Missouri (US)
    • May 1, 1928
    ...appeal. Motion to dismiss appeal overruled, judgment reversed, and cause remanded, with directions. [5 S.W.2d 700] Superseding opinion, 300 S. W. 1041. Marvin E. Boisseau, of St. Louis, for W. Scott Hancock and Judson, Green & Henry, all of St. Louis, for respondents. SUTTON, C. This is......
  • City of Ferguson v. Steffen, No. 20019.
    • United States
    • Court of Appeal of Missouri (US)
    • January 10, 1928
    ...the board shall deem such sewers necessary for sanitary or other purposes, and that said sewers shall be of such dimensions and materials 300 S.W. 1041 as may be prescribed by ordinance, and then provides for the assessment of benefits to the lots within the district, and the issuance of ta......
3 cases
  • State ex rel. Rose v. Webb City, No. 31288.
    • United States
    • United States State Supreme Court of Missouri
    • October 19, 1933
    ...Bank of Cape Girardean v. Foster, 271 S.W. 537; State v. Hiller, 295 S.W. 133; City of Ferguson to Use of United Const. Co. v. Steffen. 300 S.W. 1041; Lohmeyer v. St. Louis Cordage Co., 214 Mo. 690, 113 S.W. 1108; Syz v. Milk Wagon Drivers' Union, 18 S.W. (2d) 444; St. Joseph v. Georgetown ......
  • Lewis v. Kaplan, No. 19966.
    • United States
    • Court of Appeal of Missouri (US)
    • May 1, 1928
    ...appeal. Motion to dismiss appeal overruled, judgment reversed, and cause remanded, with directions. [5 S.W.2d 700] Superseding opinion, 300 S. W. 1041. Marvin E. Boisseau, of St. Louis, for W. Scott Hancock and Judson, Green & Henry, all of St. Louis, for respondents. SUTTON, C. This is......
  • City of Ferguson v. Steffen, No. 20019.
    • United States
    • Court of Appeal of Missouri (US)
    • January 10, 1928
    ...the board shall deem such sewers necessary for sanitary or other purposes, and that said sewers shall be of such dimensions and materials 300 S.W. 1041 as may be prescribed by ordinance, and then provides for the assessment of benefits to the lots within the district, and the issuance of ta......

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