Blunk v. Water Supply Co.

• Decision Date: 03 January 1905
• Docket Number: 8571
• Citation: 71 Ohio St. 250,73 N.E. 210
• Parties: Blunk v. The Dennison Water Supply Co.
• Court: Ohio Supreme Court

73 N.E. 210

71 Ohio St. 250

Blunk v. The Dennison Water Supply Co.

No. 8571

Supreme Court of Ohio

January 3, 1905

Owner of property destroyed by fire - Through lack of water - Cannot recover from water company - Which was under contract with municipality - To properly supply water for protection of citizens - Privity of contract.

The owner of property which is destroyed by fire through the failure of a water company to furnish water and fire apparatus to the municipality in which it is situated and to the inhabitants thereof in accordance with its contract with the municipality cannot maintain an action against the company to recover the damages resulting therefrom; there being no legal obligation resting upon the municipality to afford him protection against fire, he is not privy to the contract by substitution.

Plaintiff in error filed her original petition in the court of common pleas for the purpose of recovering from the defendant in error the value of her house which had been destroyed by fire owing to the failure of the water company to supply the village of Uhrichsville with water and apparatus sufficient in amount and character to afford due protection to its inhabitants against fire in accordance with the terms of a contract between the municipality and the water company. The allegations of the petition with re- spect to the company's obligation are in substance that on or about the eleventh day of February, 1888, the village for the purpose of protecting the property of the citizens against fire and causing them to be furnished with a sufficient quantity of water passed an ordinance authorizing the defendant to lay mains and pipes and to convey water thereby in and through the village and it was provided by the ordinance that the defendant was authorized to lay and maintain a system of pipes, conduits and hydrants along the streets and alleys of the village to supply the village and its inhabitants with water suitable for domestic manufacturing and fire purposes. The company assumed the obligation to furnish machinery having power and capacity sufficient for fire protection and to maintain an adequate and efficient system. By the terms of the contract as alleged fifty-six frost proof hydrants of approved pattern and workmanship having double delivery were to be furnished by the water company; that the compensation therefor was to be derived by the village from a tax levied upon the taxable property of the city including that of the plaintiff; that the damage to the plaintiff resulted from the failure of the water company to comply with its said contract. The company demurred to the petition and in the court of common pleas the demurrer was sustained. On petition in error the judgment of the court of common pleas was affirmed by the circuit court.

Mr James A. D. Richards and Mr. John T. McCullough, for plaintiff in error.

The contract shows upon its face that it was made for the personal benefit of the inhabitants of the village, which included the plaintiff.

The defendant agreed to establish, lay down, maintain and operate a system of mains, conduits and hydrants, for the purpose of supplying the inhabitants of the village with water suitable for domestic, manufacturing and fire purposes, and so as to afford to its inhabitants the most adequate supply for domestic and manufacturing purposes and the greatest protection against fire. The contract repeatedly provides that defendant shall furnish to the inhabitants of said village a sufficient supply of good, wholesome water suitable for domestic, manufacturing and fire purposes, and that it shall maintain a system of water works complete in all its details, necessary for the supplying the inhabitants of said village with good wholesome water for the aforesaid purposes; and that said system of water works should be laid so as to furnish the inhabitants of said village a complete proper, adequate and efficient system so that by means of said system it would furnish the inhabitants of said village, at all times, an adequate supply of water suitable for fire purposes.

Can not then a beneficiary under this contract, one for whose benefit it was made and whose monies discharge its financial burdens, and thereby furnished the consideration of it, maintain an action for its breach?

In Ohio, where a contract is made between two persons for the benefit of a third, such third person may sue upon it in its own name. Thompson v. Thompson et al., 4 Ohio St. 333; Crumbaugh v. Kugler, 3 Ohio St. 549; Manhattan Life Ins. Co. v. Smith, 44 Ohio St. 163; Emmitt v. Brophy, 42 Ohio St. 82.

The name of the person to be benefited need not be given in the contract if he is otherwise sufficiently designated or described.

He may be one of a class of persons if the class is sufficiently described or designated. Burton v. Larkin, 59 Am. 541; Johannes v. Insurance Co., 57 Am. 249.

The defendant took upon itself the duty of furnishing water to all those who came within a certain class, viz.: "inhabitants." It contracted expressly for a consideration, to furnish to these beneficiaries, sufficient water for fire purposes.

The rights and powers granted the defendant were upon the condition, coupled, with its express promise, that it would furnish ample water to the inhabitants for fire purposes; and having thus, upon sufficient consideration, assumed this duty, it became bound to carry out its contract.

And where the positive contract, made for a sufficient consideration, is to do something for the benefit of a third party, that third party has a right of action for nonperformance.

Reason and justice, regarding the sanctity of contracts require parties to do what they have agreed to do; and when a party, by his contract, creates a duty or charge upon himself, he is bound to make it good.

We are sustained in our contention by the following cases: Paducah Lumber Co. v. Paducah Water Supply Co., 89 Ky. 340; Duncan v. Owensboro Water Co., 12 Ky. L. R., 35; Gorrell v. Greensboro Water Supply Co., 124 N. C., 328. We regard the logic in the last cited case unanswerable.

Messrs. Healea & Healea, for defendant in error.

The contention of the defendant in error, the de- cision of the common pleas court below in sustaining the demurrer to the petition, and the judgment of the circuit court affirming the common pleas, are supported by the following authorities: The Akron W. W. Co. v. Brownless et al., 5 Circ. Dec., 1; 10 C. C. R., 620; Wheeler v. Cincinnati, 19 Ohio St. 19; Western College v. Cleveland, 12 Ohio St. 375; Boston Safe-Deposit & Trust Co. v. Ohio Water Co., 94 F. 238 (Salem, O.); Wright v. Augusta, 6 Am.St. 256 (Ga.); Becker v. Keokuk Water Works, 18 Am.St. 377 (Ia.); Fowler v. Athens City W. W. Co., 20 Am.St. 313 (Ga.); Willy v. Mulledy, 34 Am. 536 (N. Y.); Davis v. Clinton W. W. Co., 37 Am. 185 (Ia.); Nickerson v. Bridgeport Hydraulic Co., 33 Am. 1 (Conn.); Fitch v. Water Co., 47 Am.St. 258 (Ind.); Mott v. Cherryvale W. Co., 30 Am.St. 267 (Kan.); Howsmon v. Trenton W. Co., 41 Am.St. 654 (Mo.); Ferris v. Carson W. Co., 40 Am. 485 (Nev.); Eaton v. Fairbury W. W. Co., 40 Am.St. 510 (Neb.); House v. Houston W. W. Co., 31 S.W. 179 (Tex.); Foster v. Lookout W. Co., 3 Lea, 42 (Tenn.); Bush v. Artesian, etc., Co., 43 Pac. Rep., 69 (Ida.); Stone v. Uniontown W. Co., 4 Pa. Dist., 431; Beck v. Kittanning W. Co., 11 A. 300 (Pa.); Wainwright v. Water Co., 78 Kan. 146; Wilkinson v. Water Co., 28 So. 877 (Miss.); Britton v. Green Bay, etc., W. Co., 29 Am.St. 856 (Wis.); Phoenix Ins. Co. v. Trenton W. Co., 42 Mo. App., 118; Atkinson v. Newcastle, etc., Co., 2 Ex. Div., 441.

In a later Kentucky case (Graves County Water Co. v. Ligon, 66 S.W. 725) the court held the water company liable to the citizen and refused to overrule the holding in that state, not upon the ground of the correctness of the former holding, but upon the sole ground that the contract was made with reference to the law as it then obtained in that state.

We do not dispute the correctness of the holdings in the Ohio cases cited by counsel for plaintiff in error in their brief, but assert that they are not applicable to the case at bar. "It is not every contract for the benefit of a third party that confers upon such third party the right to sue thereon." The Akron W. W. Co. v. Brownless, 5 Circ. Dec., 1; 10 C. C. R., 620.

A third person who is only indirectly and incidentally benefited by a contract has no right of...