Spencer v. Bessemer Water Works

TYSON, J. This action was brought by plaintiff to recover damages for an alleged breach of duty by defendant in failing to supply to plaintiff water for his use in and about carrying on his business as a florist. The first count of the complaint, as originally filed, after averring that defendant was engaged in the business of supplying water to the citizens of Bessemer for hire or reward, alleges “that he (plaintiff) constructed his said works and entered into and carried on his said business with reference, in accordance and adjusted to the water supply so furnished by defendant and under a contract or agreement with defendant, in accordance with its custom and usage in operating said water works system, for a sufficient supply of water for the plaintiff to use in and about his said business so that plaintiff avers, it became and was the duty of the defendant in the performance of its said public service in operating its said water works system, to furnish the plaintiff with all necessary water for the purpose of watering and sprinkling his said flowers,' shrubbery, etc., and for other purposes in and about his said business and plant. And plaintiff avers that the defendant did so furnish him with water for said business and plant until the spring of 1901, when the defendant disregarding its duty to the plaintiff as above said, negligently failed and refused to furnisli plaintiff with the necessary water,“ etc., etc. No consideration for the contract is here alleged. Newton v. Brooks, 134 Ala. 269. But if it be said that the count shows a partial performance by defendant of the contract alleged, and, therefore, no consideration for it need be averred, it is not shown, except perhaps inferentially, that it was binding upon the parties at the time defendant failed or refused to furnish the water. Non constat, the refusal or failure to supply the water was due to plaintiff’s failure to perform Ms allegations under the contract. As said by the supreme court of Conneticut in Nickerson v. Bridgeport Hydraulic Co. (33 Am. Rep. 2), in passing upon the sufficiency of a count very similar to this one, by which it was sought to recover damages suffered on account of the negligent failure of the water company to furnish plaintiff water to extinguish fire; [596] “This count attempts to hold the defendants liable for the destruction of the plaintiff’s property on the ground that it was their duty to supply the plaintiffs with water sufficient to extinguish the fire in question, and that they neglectel to perform this duty. But no facts are stated sufficient to establish any such duty on-the part of defendants. It is true the count states that the defendants are a corporation, organized to supply the inhabitants of Bridgeport with water to extinguish their fires. But does this create an obligation to supply the water without any thing more? A corporation is organized to manufacture woolen goods and sell them in the, market Does this alone create an obligation to manufacture the goods and supply them to A, whether he pays any thing for them or not? It is not alleged in the count that the plaintiffs ever paid any thing, or even promised to pay any thing to the defendants for the supply of water to extinguish their fires. It is further alleged that the defendants contracted with the plaintiff to supply them with water to extinguish their fires, but nothing appears to show precisely what the contract was: no terms or conditions whatever are stated. Whether the contract was in force or not at the time of the fire is left in conjecture. The allegation is a bare statement of 'the fact of a contract and nothing else. No principle is better settled in the law than that an allegation of duty alone is not sufficient. There must be an allegation of facts sufficient to create the duty or obligation or else the declaration will be fatally defective.” The demurrer to the first count was properly sustained. For the same reasons the second count as originally framed was subject to the demuiTer interposed to it. Subsequently these counts were amended by a substitution of new counts. In these substituted counts, no contract between plaintiff and defendant is averred or attempted to be. Nor is it alleged that the defendant was under any contractual obligation with the city of Bessemer to furnish the water to plaintiff. It is true it is averred that defendant has the exclusive right to furnish water to the citizens of Bessemer under and by a franchise granted it by the authorities of said city; and it may be inferred arguendo, from the allegations, that [597] under ids franchise, it had the right to make and charge certain rates for water furnished by it. It is not alleged, however, what rate this plaintiff was to pay, or the city was to pay for him or that he or the city ever paid or were under any obligations to pay at all. Certainly the defendant was not to furnish water to plaintiff gratitiously. The counts were clearly bad. As said by Mr. Farnham, in his recent work on Water and Water Bights (Vol. 1) p. 842; “The question of the right of the consumer to maintain an action against the water company for failure to furnish a supply resolves itself into two elements. The first involves his right to sue for failure to comply with the implied contract which the company assumed, to furnish water for private needs in consideration of the rates of taxes assessed against the consumer for the supply furnished. And the second involved his right, as one of the public, to sue for special injury to him because of the breach by the company of its contract with the municipality to furnish a supply of water for general public needs. With respect to the first question there need be little difficulty. When a private citizen pays for water to be furnished by the supply company he enters into direct contract with the company and is entitled to receive the supply; and in case it is not furnished or the liability is bad as to cause injury to him, he has a right of action for the breach of the contract. * * * * * The second question, namely, that of the right of a private citizen to sue as one of the public specially injured for breach 'of the company’s contract, with the municipality, is not so easily solved.” The author then proceeds to review the cases, involving the question last adverted to and to state his notion of the law, that should control in the solution of that question. It is, however, not necessary here to follow him further, since, as we have said above, no contract is shown between the city and the defendant to furnish the water to plaintiff; and, indeed, if such a contract, was averred, the authority of the city to bind itself by it might seriously be questioned, pertaining as it must necessarily to the private needs of plaintiff rather than to general public needs. [598] After ‘the demurrer was sustained to the substituted counts, they were twice amended. The first of these amendments consisted in simply interlining and inserting in the counts, after certain words designated in the amendment, the words “for reward paid and to be paid by the plaintiff to defendant.” As thus amended, the demurrer to the counts was overruled and the defendant put to its defense of them by pleas. The second amendment, after issue was taken on the pleas, seems to have been wholly voluntary, and so emasculated the first that it rendered the counts as thus amended unintelligible. Tlhe third and fourth counts, which were also added by way of amendment, are so patently defective, it is unnecessary to point out specially their defects. They will readily appear when read in the light of the principles declared above. It follows from what we have said that the court properly sustained demurrers to each of the counts, and the judgment must be affirmed. Affirmed. McClellan, C. J., Simpson and Anderson, JJ., concurring.