Buchanan & Smock Lumber Co. v. E. Jersey Coast Water Co.
| Decision Date | 07 November 1904 |
| Citation | 59 A. 31,71 N.J.L. 350 |
| Court | New Jersey Supreme Court |
| Parties | BUCHANAN & SMOCK LUMBER CO. v. EAST JERSEY COAST WATER CO. |
Action by the Buchanan & Smock Lumber Company against the East Jersey Coast Water Company. On rule to show cause. Rule made absolute.
Argued June term, 1904, before GUMMERE, C. J., and GARRISON, GARRETSON, and SWAYZE, JJ.
E. B. Leaming, for the rule.
Samuel A. Patterson, opposed.
This action is brought to recover from the defendant the loss sustained by the plaintiff in the destruction of its buildings and their contents by fire; the liability of the defendant, as it is contended, arising out of its negligence in failing to supply water for the extinguishing of the fire, in accordance with the requirements of a contract entered into by the parties. By the terms of the contract the defendant agreed to furnish to the plaintiff "water for fire protection," and the plaintiff agreed to pay for the same at the rate of $15 per year for a period of five years. The contract further provided that the rules and regulations of the defendant company, a copy of which was recited to be annexed to it, were made a part thereof, with like effect as though written therein. One of the rules referred to was in the words following: "The company reserved the right to shut off the water for alterations, extensions, and repairs, and to stop and restrict the supply of water whenever it may be found necessary, and the company shall not be liable under any circumstances for a deficiency or failure in the supply of water, whether occasioned by shutting off water to make repairs or connections, or for any cause whatsoever." The trial judge, during the progress of the case, held that the contract was a private one between private parties, and for a private purpose, and the case was tried upon that theory. Consequently the only matter now presented for consideration is the true construction of the clause, in the rule cited, relieving the defendant from liability for a deficiency or failure in the supply of water; for the holding of the trial judge above referred to eliminated from the case the question whether a public agent (such as a water company usually is) may, by contract with a consumer, limit its liability for a failure in the supply of water agreed to be furnished, due to its own negligence. The meaning of the clause does not seem open to doubt Except for its presence in the contract the liability of the defendant would have been...
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