House v. Houston Waterworks Co.

• Decision Date: 13 May 1895
• Citation: House v. Houston Waterworks Co., 31 S.W. 179, 88 Tex. 233, 28 L. R. A. 532 (Tex. 1895)
• Parties: HOUSE v. HOUSTON WATERWORKS CO.
• Court: Texas Supreme Court

Page 179

31 S.W. 179

HOUSE v.HOUSTON WATERWORKS CO.

Supreme Court of Texas.

May 13, 1895.

Error to court of civil appeals, First supreme judicial district.

Action by Henry House against the Houston Waterworks Company.From an affirmance by the court of civil appeals (22 S. W. 277) of a judgment for defendant, plaintiff brings error.Affirmed.

O. T. Holt and A. T. Patrick, for plaintiff in error.Hutcheson & Sears, for defendant in error.

BROWN, J.

The city of Houston was incorporated by a special act of the legislature which contained the following provisions (Laws 1874, p. 11):

"Sec. 24.That the city council shall have power and authority * * * to provide means for the protection, and extinguishment of conflagrations, and for the regulation and maintenance of a fire department."

In the year 1878, the city, by its mayor, entered into a contract in writing with James M. Loweree and associates by which the latter agreed and bound themselves to construct in the city of Houston a first-class system of waterworks, and to furnish the city with water for the purpose of extinguishing fires and other purposes.Loweree and associates, after making the contract, procured a charter from the state of Texas, being incorporated as the Houston Waterworks Company; and under that charter the defendant constructed waterworks in the city of Houston, and furnished water to the city under the terms of the contract made with Loweree and associates, receiving pay therefor in accordance with the terms of that contract.Plaintiff in error sued defendant in error in the district court of Harris county, alleging that he and his wife, at and before the date of the fire, were citizens of the city of Houston, and that they owned a lumber yard in the said city; that a fire originated in a lumber yard near to that which belonged to plaintiff in error, which fire was communicated to the lumber yard and property of plaintiff.It was alleged that the city of Houston had a well-equipped and efficient fire department, which arrived at the scene of the fire in due time, and could and would have arrested its progress, and would have prevented the destruction of plaintiff's property, if there had been in the pipes and mains a sufficient supply of water, with a proper pressure, such as defendant had contracted with the city of Houston to furnish; that defendant negligently failed to furnish water in the pipes as it agreed to do; that there was not sufficient pressure to throw water to the height specified in the contract, and that by reason of such negligence the plaintiff's property was destroyed by the said fire.The district court sustained a demurrer to the petition, and, plaintiff declining to amend, the cause was dismissed, from which judgment plaintiff appealed to the court of civil appeals, which affirmed the judgment of the district court.

This action is based solely upon the alleged failure of the waterworks company to comply with the following clause of the contract made by Loweree and associates with the city of Houston: "(6) To guaranty that the said waterworks shall be of the most durable character and materials, and first class in all respects, and capable of supplying three million (3,000,000) gallons per day, for twenty-four hours, also with a sufficient pressure to raise the water to all parts of the highest building of said city, and shall maintain said supply of water in the pipes at all times, except it be in case of accident or to repair the said works, in which case such time as may be necessary shall be allowed for repairs; and that said works shall be capable at any time in case of fire of throwing six streams of water at one time one hundred (100) feet high through fifty (50) feet of hose, of two and one-half inch hose, and one and one-eighth inch nozzle."

Three questions of law arise upon the allegations of the petition, which are material to the determination of this case: First.Can the plaintiff recover against the defendant upon the contract made with the city of Houston?Second.If plaintiff cannot maintain an action against defendant upon the contract, can he maintain an action as for tort for the failure to comply with the contract?Third.Did the defendant, by its contract with the city of Houston, undertake the performance of a public duty, and, for failure to comply, become liable to plaintiff for damages for his losses?

As a general rule, no person can sue upon a contract except he be a party to or in privity with it.Many cases based upon contracts practically the same as the one now in suit, under almost identically the same circumstances, have been decided by the courts of different states of the United States, and almost unanimously these courts have held that a citizen of a municipal corporation cannot recover from a water company for a failure to perform such a contract made with such municipal corporation.Ferris v. Water Co., 16 Nev. 44;Foster v. WaterCo., 3 Lea, 42;Nickerson v. Hydraulic Co., 46 Conn. 24;Fowler v. Water Co., 83 Ga. 219, 9 S. E. 673;Davis v. Waterworks Co., 54 Iowa, 59, 6 N. W. 126;Becker v. Waterworks Co., 79 Iowa, 419, 44 N. W. 694;Britton v. Waterworks Co.(Wis.)51 N. W. 84;Eaton v. Waterworks Co.(Neb.)56 N. W. 201;Mott v. Manufacturing Co.(Kan.)28 Pac. 989;Beck v. Water Co.(Pa. Sup.)11 Atl. 300;Howsmon v. Water Co.(Mo. Sup.)24 S. W. 784.

It is claimed, however, that the city of Houston represented its inhabitants in making the contract, and that it was made for their benefit, which gives a right of action to any citizen that may suffer injury by its breach.The city of Houston did represent its citizens in making the contract just as such governments represent the people in every official act, but in no other sense.It is true that plaintiff in error might have received benefit from the performance of the contract by the defendant, but "it is not every promise made from one to another, from the performance of which a benefit may inure to a third, which will give a right of action to such third person, he being neither privy to the contract nor to the consideration.The contract must be made for his benefit as its object, and he must be the party intended to be benefited."Simson v. Brown, 68 N. Y. 355;Burton v. Larkin, 36 Kan. 249, 13 Pac. 398;Wright v. Terry, 23 Fla. 169, 2 South. 6.

In support of the right of the plaintiff to recover on the contract made between Loweree and associates and the city of Houston, counsel cite Telegraph Co. v. Adams, 75 Tex. 531, 12 S. W. 857;Atkinson v. Waterworks Co., L. R.6 Exch. 404;Paducah Lumber Co. v. Paducah Water-Supply Co.(Ky.)12 S. W. 554;andDuncan v. Water Co., Id. 557.

The first-cited case(Telegraph Co. v. Adams) was a suit for failure to deliver the following telegram: "Waco, October 12, 1887.F. E. Adams, Athens: Clara, come quick.Rufe is dying.O. M. Simmons."The party addressed was the husband of Clara, who was the sister of Rufe.Mrs. Adams was mentioned in the message.It was sent for her benefit alone, and the court held that she came within the rule quoted above, and could recover for its breach.In this case the contract does not embrace the plaintiff either by name or by mentioning a class to which he belongs.It was not made for the purpose of benefiting him or a class to which he belongs.The object and purpose of making the contract was to keep water in the mains which the city might apply to use in the public fountains, by flushing the gutters, or in extinguishing fires in case a conflagration should occur.If a fire occurred, and if plaintiff's property should be involved, and if the fire company should arrive in time, he might be benefited by the performance of the contract.Such benefit would be incidental, however; not flowing immediately from the performance of the contract.So the injury resulting from a failure on the part of the water company would not be proximate, but remote, as a cause.

An act of parliament required the New Castle Water Company to keep its mains and pipes filled with water, with a pressure sufficient to throw water to a stated height, which was sufficient to extinguish fires in the buildings of the town; and each citizen was authorized to take water at all times to extinguish fires.In Atkinson v. Water Co.plaintiff alleged a failure to keep the water in the pipes with the required pressure, whereby plaintiff was unable to extinguish a fire which occurred in his premises, and the property was destroyed.The court held the company liable to the plaintiff in the value of the property destroyed.On appeal the judgment was reversed, and, while the reversal was put on another ground, the court criticised and virtually overruled the opinion upon this point.2 Exch. Div. 441.The case under consideration does not come within the principles which governed in that case.No statute enjoined upon the Houston Waterworks Company to keep water in the mains, and the citizens of Houston had no right to use the water to extinguish fires.The city by its fire company could alone use the water for that purpose.

In Paducah Lumber Co. v. Paducah Water-Supply Co. the right of the property owner to recover of the water company upon a contract made with the municipal corporation, very much like the one under consideration, and under very similar circumstances, was the question directly involved.The court held that the property owner could sue upon the contract.Duncan v. Water Co. was decided by the same court(the supreme court of Kentucky) upon the authority of the former case.No authority is cited by the court to sustain the decisions, and no reference is made to the many cases which hold to the contrary.The reasoning in the cases is not such as to induce us to follow them in opposition to the otherwise unanimous decisions of the American courts.

It is claimed for the plaintiff that, if he cannot maintain an action upon the contract as such, he can sue as in...