Eaton v. Fairbury Waterworks Co.

• Decision Date: 20 September 1893
• Citation: 56 N.W. 201,37 Neb. 546
• Parties: EATON v. FAIRBURY WATERWORKS CO.
• Court: Nebraska Supreme Court

37 Neb. 546

56 N.W. 201

EATON

v.FAIRBURY WATERWORKS CO.

Supreme Court of Nebraska.

Sept. 20, 1893.

Syllabus by the Court.

1. A provision in the ordinance of a city granting a franchise to supply water to the city requiring that “the grantee shall constantly day and night (except in case of an unavoidable accident) keep all fire hydrants supplied with water for instant service, and shall keep them in good order and efficiency,” did not confer upon the owner of property destroyed by fire a right of action against said grantee on account of its failure to furnish water as stipulated, although thereby the loss by such fire would have been obviated.

2. Under such circumstances, such grantee is not liable by reason of assuming the functions which might properly belong to the city, for the reason that under the facts stated the city, if performing the same functions, would not be liable.

Commissioners' decision. Error to district court, Jefferson county; Morris, Judge.

Action by Martin L. Eaton against the Fairbury Waterworks Company for a failure to supply sufficient water in a case of fire. From an order vacating a judgment for plaintiff, entered by default, and granting a new trial, plaintiff brings error. Affirmed.Hambel & Heasty for plaintiff in error.

H. D. Estabrook and W. P. Freeman, for defendant in error.

RYAN, C.

On the 5th day of May, 1890, Martin L. Eaton filed in the district court of Jefferson county his petition praying judgment against the Fairbury Waterworks Company for the value of certain of his goods destroyed by fire on December 2, 1889. The right to the recovery sought was predicated upon the statements that the defendant was at the time of said fire owner of and operating in the city of Fairbury, in said county, a system of waterworks built and constructed pursuant to the terms and conditions of a certain contract and franchise entered into and granted by said city to A. L. Strang and his successors under the provisions of a certain ordinance of said city, whereby said Strang and his assignees were bound during the continuance of said franchise to keep all fire hydrants supplied with water for instant service, and to keep them in good order and efficiency; that payment for the aforesaid service was provided to be made by the levy of a tax upon all taxable property in said city; that plaintiff was one of the said taxpayers; and that the loss aforesaid was caused by the negligent failure of the waterworks company aforesaid to provide water for the hydrants near the place of said fire in sufficient quantity to extinguish the same, notwithstanding it was required by said ordinance to make such provision. There was a detailed description of the property destroyed, and a statement of its value, and a prayer accordingly. On April 7, 1890, there was filed a general demurrer to said petition, which, on the 11th day of the same month, was overruled, and two days thereafter a judgment was rendered against the waterworks company for the full amount claimed in the petition aforesaid. On the 5th day of the month following the waterworks company filed in said court its petition praying that the aforesaid judgment be set aside, and that said waterworks company be admitted to defend against the claim set up in said petition. The grounds upon which this relief was sought were that the attorneys for the waterworks company had been misled as to the time when the demurrer aforesaid could be taken up and presented for determination, and therefore had failed to appear on or before the 11th day of April, aforesaid, to present the defense of said company. It was claimed that this misunderstanding in the main was attributable to a telegram received from the attorneys for Martin L. Eaton by the attorneys for the waterworks company,--a contention sustained by the district court, and which, as a question of fact decided upon conflicting evidence, will be treated as correct, and therefore will receive no further notice. To the petition to open the judgment there was filed a general demurrer, after which was filed an answer putting in issue the several matters alleged in said petition, to which answer there was made a reply. Upon a trial of these issues the district court made the following finding and order, to wit: “This cause coming on to be heard upon the petition of the plaintiff and the evidence, on consideration whereof the court finds that without fault or negligence on the part of the plaintiff herein it was prevented from appearing and making its defense in cause No. 47, docket F, of this court, wherein the plaintiff herein was defendant, by the acts of said Eaton and his attorneys, as in plaintiff's petition alleged, and that said judgment should be vacated and set aside, but at the cost of the plaintiff herein. The court is not attempting to settle the merits of the case of said Eaton against the waterworks company, and makes no finding as to the merits of said defense of said waterworks company in said action. It is therefore considered that the judgment heretofore rendered in cause No. 47, docket F, wherein Martin L. Eaton is plaintiff and the said waterworks company is defendant be, and hereby is, set aside and vacated, and a new trial granted in said cause at the costs of the plaintiff herein of the former trial. It is ordered that said cause be placed upon the trial docket for trial in its order. To which acts and doings of this court, all and singular, the said Eaton duly excepts.” From this order awarding a new trial and vacating a former judgment in his favor the plaintiff in error brings the cause in which said order was made for review to this court. As some of the matters considered by the district judge were such that they must have transpired under his observation,--such as, for instance, whether the order overruling the demurrer was entered upon being regularly reached upon call of the trial docket,--we shall not attempt to review his findings that, without fault upon the part of the waterworks company or its attorney, it was prevented from making a defense. The sole question remaining for our consideration, then, is whether or not the petition of Eaton against the waterworks company stated a cause of action.

Plaintiff in error predicates his right to maintain an action against the waterworks company upon the following provision of the ordinance under which the waterworks company, as assignee of the rights of A. L. Strang, operated its waterworks: “The grantee (A. L. Strang or his assignee) shall constantly day and night (except in the case of an unavoidable accident) keep all the hydrants supplied with water for instant service and shall keep them in good order and efficiency.” It is insisted in argument that this provision, while made with the city, was for the benefit of the taxpayers, and that, therefore, it was a contract for the benefit of plaintiff, upon which he might bring suit for its violation to the detriment of plaintiff. The decision of this court relied upon to sustain this position is that of Shamp v. Meyer, 20 Neb. 223, 29 N. W. Rep. 379. As that case illustrates well the class of cases to which is applicable the principle that, where a promise is made by one for the benefit of another, suit may be brought for the enforcement of such promise by the beneficiary, it should receive more than a mere passing notice. Meyer was a member of the firm of Noring & Meyer, which had assumed the performance of the promises of its predecessor, one of which was to pay all the indebtedness of its predecessor, a firm of which Shamp was a member. This was not done, but Shamp was compelled to pay said indebtedness provided against, and thereupon sued Meyer for the amounts which he had thus been compelled to pay. This undertaking of the firm of which Meyer was a member was founded upon a valuable consideration, and it was held that, though the consideration did not move directly from Shamp to the firm of which Meyer was a member, yet it did move from the parties with whom Meyer's firm contracted, and was enforceable at the suit of Shamp, on the same principle as where, in a deed, the payment of a mortgage is assumed absolutely, suit may be brought by the mortgagee against the party who thus assumed payment. In the case at bar, however, Eaton was not in any way recognized as either a party or a beneficiary, so that the authority cited in no way aids his contention. If his action could at all be maintained it must be upon grounds different from those considered in Shamp v. Meyer, supra, for, as we have observed, there is no express provision in the ordinance in his favor. The case most nearly in point, cited by plaintiff, favorable to his right of recovery, is that of the Paducah Lumber Co. v. Paducah Water Supply Co., (Ky.) 12 S. W. Rep. 554, in which there were general provisions as to the manner in which payment should be made the supply company, i. e. by a general tax. As a demurrer was sustained to the petition, its averments of fact controlled the decision of the court, as clearly appears from the language of that opinion. After reciting the above manner of raising a water rental by general tax, and the agreement of the water supply company in consideration thereof to supply fire protection, which it was alleged it had failed to do to plaintiff's loss, the opinion proceeds in this language: “It is further stated that under a contract directly between them there had been erected, previous to the fire, on the same lot where the burned property was situated, two hydrants, one within 30 and the other within 70 feet of...