Lewis v. Kaplan

• Decision Date: 10 January 1928
• Docket Number: No. 19966.,19966.
• Citation: 300 S.W. 1041
• Parties: LEWIS et al. v. KAPLAN et al.
• Court: Missouri Court of Appeals

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.

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Superseded on rehearing, see 5 S.W.2d. 699.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

Defendant 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 plaintiff Arthur A. Lueke, who held the property under the lease aforesaid, would sign an agreement to allow said defendant 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 plaintiff 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 into a contract to sell the above-described property now if the within contract of sale is consummated, the privilege to build on or occupy the south 80 feet of lot is hereby granted the purchaser, but if...