Lovejoy v. Bessemer Waterworks Co.

WEAKLEY, C. J. The. overwhelming weight of authority is against the right of the plaintiff to maintain this action. The reason why he may not do so is that there is a want of privity between him and the defendant which disables him either from sueing for a breach of the contract or for the breach of duty growing out of the contract. It is impossible at this late day to say anything new upon the subject, and it would be affectation to attempt any elaborate discussion of the question involved. The reasoning which leads to the conclusion may be found in many, if not all, of-the following cases, which have been examined and which hold against the right of a plaintiff, under similar conditions, to recover damages for losses by fire occasioned by the failure of a waterworks company to furnish a supply of water as it had stipulated to do in its contract with the municipality. — Nickerson v. Bridgeport Hydraulic Co., 46 Conn. 24, 33 Am. Rep. 1; Foster v. Lookout Water Co., 3 Lee (Tenn.) 42; Davis v. Waterworks Co., 54 Iowa, 59, 6 N. W. 126, 37 Am. Rep. 185; Fowler v. Waterworks Co., 83 Ga. 219, 9 S. E. 673, 20 Am. St. Rep. 313; Ferris v. Water Co., 16 Nev. 44, 40 Am. Rep. 488; Becker v. Waterworks, 79 Iowa, 419, 44 N. W. 694, 18 Am. St. Rep. 377; Howsmon v. Trenton Water Co., 119 [380] Mo. 304, 24 S. W. 784, 41 Am. St. Rep. 654, 23 L. R. A. 146; Fitch v. Seymour Water Co., 339 Ind. 214, 37 N. E. 982, 47 Am. St. Rep. 258; Britton v. Green Bay Water Co., 51 N. W. 84, 81 Wis. 48, 29 Am. St. Rep. 856; House v. Houston Water Co. (Tex. Civ. App.) 22 S. W. 277, affirmed by Supreme Court of Texas in 88 Tex. 233, 31 S. W. 179, 28 L. R. A. 532; Beck v. K. Water Co. (Pa.) 11 Atl. 300; Wilkinson v. Light, Heat & Water Co. (Miss.) 28 South. 877; Mott v. Cherry Vale Water Co., 48 Kan. 12 28 Par. 989, 15 L. R. A. 375, 30 Am. St. Rep. 267; Bush v. Artesian Water Co. (Idaho) 43 Pac. 69, 95 Am. St. Rep. 161; Eaton v. Fairburg Waterworks Co., 37 Nev. 546, 56 N. W. 201, 21 L. R. A. 653, 40 Am. St. Rep. 510; Allen & Curry Mf. Co. v. Shreveport Waterworks Co. (La.) 37 South. 980, 68 L. R. A. 650; Boston Safe Deposit & Trust Co. v. Salem Water Co. (C. C.) 94 Fed. 238; Metropolitan Trust Co. v. Topeka Water Co. (C. C.) 132 Fed. 702. Only two courts in the United States, as far as we can ascertain, have sustained an action of this kind. The first case so holding is Paducah Lumber Co. v. Paducah Water Supply Co., 89 Ky. 340, 12 S. W. 554, 13 S. W. 249, 7 L. R. A. 77, 25 Am. St. Rep. 536, which cited no authorities, and in which the holding was unnecessary, since there was in that case a private contract between the water company and the consumer which required the fire pressure to be furnished. The later Kentucky cases but followed the first decision. In Gorrell v. Water Supply Co., 124 N. C. 328, 32 S. E. 720, 46 L. R. A. 533, 70 Am. St. Rep. 598, it was held by a divided court that a similar action would lie. The decision was rested upon the principle, stated by the court in general terms, that one not a party or privy to a contract, but who is the beneficiary thereof, is entitled to maintain an action for its breach, and many cases are cited which are assumed to sustain the general proposition, which was stated without qualification. It is not true however, that the principle can be maintained to the full extent and in the unaqualified terms stated by the Supreme Court of North Carolina in the Gorrell Case supra. The same cases there cited were ex381 aminecl by tlie Supreme Court of Missouri in Howsmon v. Trenton Water Co., 119 Mo. 304, 24 S. W. 784, 41 Am. St. Rep. 654, 23 L. R. A. 146, and were shown to establish the qualification that “the rule is not so far extended as to give to a third person, who is only indirectly and incidentally benefited by the contract, the right to sue upon it.” It iras furthermore shown that in the cases where an action had been sustained, when instituted by a third party upon a contract for his benefit, there had been a debt or duty owing by the promisee to the party claiming the right to sue upon the promise. It is not claimed that the city of Bessemer owed any duty to the plaintiff to furnish water for the extinguishment of fire, or that an action could have been maintained against the city for a failure in that regard. While there has not heretofore been a direct adjudication in this state of the question presented by this record a.s arising out of a water supply contract, yet there has been an incidental recognition of the want of a right of recovery by a property owner against a waiter company failing to observe its contract with a municipality to furnish water for the extinguishment of fires. In Bienville Water Suply Co. v. City of Mobile, 112 Ala. 260, 20 South. 742, 33 L. R. A. 59, 57 Am. St. Rep. 28, in vindicating the right of the city to enjoin the water company from cutting off the umter supply, where a contract existed for the supplying of water for fire purposes, Brickell, C. L, said: “If the city may not adopt this remedy, it is without any remedy. If, pursuant to the notice given, the company should shut off its water supply, and damage should result, no matter liow extended, it is settled that neither the city nor the owners of private property injured by the breach of public duty could maintain an action against the company.” The principle of law which controls this case is also stated and applied in tire somewdiat similar cases of Williams v. Stilwell 88 Ala. 332, 6 South. 914, and City of Montgomery v. Halse, (at present term) 40 South. 665. The latter case involved a contract by a lighting company to light the streets of a city. [382] In Ins work on Waters and Water Rights, Mr. Farnham considers the question involved in this case, and reviews some of the authorities upon the subject. He says that, so far as the decisions favorable to the maintenance of the action are based on the theory that one for whose benefit a contract is made may sue to enforce it, they are unbound, and assert that the only ground upon which, such suits can be sustained is that the contract is made by the taxpayer as principal, through the instrumentality of the municipality as his agent. The author also asserts that, “even if the company undertakes to pay the damages which will result to taxpayers because of its breach of duty, there' can be no recovery unless the plaintiff shows himself to be. a taxpayer,” citing for the proposition the case of Mott v. Cherryvale Water Company, 48 Kan., 15, 15 L. R. A. 375, 30 Am. St. Rep. 267,, 28 Pac. 989. After considerable discussion the learned author concludes that the decisions adverse to the right to maintain the action are correct in their result, although he thinks that they have been placed on the wrong principle; that is, the principle of want of privity. His opinion is that “the nonliability of the water company depends, not cm the inability of the taxpayer to maintain the action, but on the failure of the water company’s contract to cover the- liability sued for, which lack of liability he. bases upon the proposition that the contracting water company is not an insurer against fire losses, and that its agreement to furnish water is not an agreement to extinguish fires. — Farnham on Waters and Water Rights, pp. 842-848, § 160b. Much might be urged pro and eon as to the proper ground upon which to place nonliability, hut we have no desire to enter upon that field of disputation. It suffices for all practical purposes of this case to say tliat our own decisions, in which the opinions wore written by as able judges as ever occupied this bench, and in which there was no dissent, have rested the conclusion in similar cases involving public contracts upon thedeclation that there was a want of privity ;and this declaration has likewise been made by many other American [383] courts, enjoying the very highest reputation, if, indeed, it has not been made by all the courts of last resort which hare reached the same conclusion as that we here announce. If there be those' who think the decision should be rested upon the theory that the contracting company has not assumed liability for damage or loss from fire, because liability for such loss was not within the contemplation of the parties to the contract, they must admit the correctness of our holding, although not agreeing to the reason which this court and other courts have chosen to give as the basis of their decisions. When there is agreement as to the result in any case, differences as to the reasons inducing or that should induce that result are not vital nor always important. We recognize that the absence of a remedy by suit for damages for failure by a water company to furnish water for fire purposes, according to its contract with a city, haves the subject “in a.n extremely unsatisfactory position/' as stated in the note to Britton v. Waterworks Co., 29 Am. St. Rep. 856, 863, yet, as the learned annotator suggests, “the only security would seem to be in legislation or in the incorporation of some suitable provision in future contracts of this description, whenever the taxpayer desires to reserve a personal remedy against the water company.” It is not the function of a court to make law to fit hard cases. The demurrer to the complaint was properly sustained. Affirmed. Tyson. Süipson, and Anderson, JJ., concur.