Howsmon v. Trenton Water Company

• Citation: 24 S.W. 784,119 Mo. 304
• Parties: Howsmon, Appellant, v. Trenton Water Company
• Decision Date: 23 December 1893
• Court: United States State Supreme Court of Missouri

24 S.W. 784

119 Mo. 304

Howsmon, Appellant, v. Trenton Water Company

Supreme Court of Missouri, First Division

December 23, 1893

Appeal from circuit court, Grundy county; G. D. Burgess, Judge.

Action by William Howsmon against the Trenton Water Company for the burning of plaintiff's house, caused by defendant's failure to furnish a supply of water sufficient to extinguish the fire. There was judgment for defendant on a demurrer to the complaint, and plaintiff appeals. Affirmed.

Harber & Knight and A. W. Mullins for appellant.

(1) The facts alleged in the petition and admitted by the demurrer show that the contract was made for the benefit of plaintiff and other tax paying citizens of the town as individuals as well as for the town as a municipality, while the compensation -- the consideration for the supposed benefits to accrue to the town and its citizens for the water supply and for the extinguishment of fires -- was to come from the taxpayers alone. And so, the contract having been made in part for plaintiff's benefit and on his behalf, he has a right of action, and this is well and sufficiently set forth in his petition. Roger v. Gosnell, 58 Mo. 589; Myer v. Lowell, 44 Mo. 328; Fitzgerald v Barker, 70 Mo. 685; Bank v. Benoist, 10 Mo 519; Roger v. Gosnell, 51 Mo. 466; State ex rel v. Gas Light Co., 102 Mo. 472. (2) One of the ordinances, pleaded, provided that "should said water company, from lack of water supply or any other cause, except providential or unavoidable accident, fail to furnish a reasonable or adequate supply of water to extinguish any fire, then it shall be liable for all damages occasioned by such fire or neglect." Defendant having failed to fulfill this important provision in the contract, as shown by the allegations of the petition, it became and is liable to the plaintiff for the damages he sustained by reason of defendant's failure and neglect. Authorities supra, and also, Lumber Co. v. Water Supply Co., 12 S.W. 554; Duncan v. Water Co., 12 S.W. 557; Markel v Telegraph Co., 19 Mo.App. 80; Lampert v. Gas Light Co., 14 Mo.App. 376.

R. L. Yeager for respondent.

(1) The appellant was not a party to the contract sued on, and sustained no relation of privity to either of the contracting parties. Therefore he can not maintain an action upon the contract, and the judgment of the trial court should be affirmed. Vrooman v. Turner, 69 N.Y. 280; Woodland v. Newhall, 31 F. 434; Kansas City ex rel. v. O'Connell, 99 Mo. 357. (2) The payment of a tax levied by the town of Trenton for the purpose of paying its hydrant rental to the water company, does not create a privity of contract, so as to authorize the appellant to sue. Becker v. Keokuk Waterworks, 79 Iowa 419. (3) The precise point raised by the demurrer in this case has been decided in a number of well considered cases; and in every instance the appellant's right of recovery, upon similar contracts to the one pleaded, has been denied. Ins. Co. v. Trenton Water Co., 42 Mo.App. 118; Davis v. Water Company, 54 Iowa 59; Becker v. Waterworks, 79 Iowa 419; Nickerson v. Hydraulic Co., 46 Conn. 24; Ferris v. Water Co., 16 Nev. 44; Atkinson v. Newcastle Co., 2 L. R. Exch. Div. 441; Fowler v. Water Co., 9 S.E. 673. (4) The town of Trenton, under its charter rights, had no power or authority to make a contract of indemnity for the benefit of the individual taxpayer.

Brace J. Barclay, J., absent.

OPINION

Brace, J.

This is an appeal from the judgment of the circuit court of Grundy county, sustaining a demurrer to the plaintiff's petition, the material allegations of which are in substance as follows: That the plaintiff is a resident citizen and taxpayer of the town of Trenton in said county and the owner of a large amount of valuable property within the corporate limits of said town, subject to taxation for ordinary purposes, and to a special tax of five mills on the dollar annually for the purpose of discharging the obligations of said town to the defendant on the contract sued on herein, all of which he has regularly and promptly paid.

That by a contract entered into, by ordinances, between the town of Trenton and the defendant, the said defendant (in consideration of the franchise granted it, and the privilege of collecting certain water rates from its citizens, and of the sum of $ 2,000, to be paid annually by the town, to be raised by an annual tax of five mills as aforesaid, all of which the defendant has received and enjoyed) promised and agreed with said town to furnish at all times an adequate supply of good, clear, and wholesome water, for fire and other purposes for public and private use, under such a pressure as to have the power to throw at all times six streams of water through fifty feet of two and one-half inch rubber hose and one inch ring nozzle eighty feet high in the business portion of the town, and to throw at least two effective streams at any one time, in any other part of the town accessible from the mains; and further agreed, that "should said water company from lack of water supply, or any other cause except providential or unavoidable accident, fail to furnish a reasonable or adequate supply of water to extinguish any fire, then it shall be liable for all damages occasioned by such fire or neglect."

That on the twenty-fourth of March, 1889, plaintiff's dwelling house in said town, with the household and kitchen furniture and wearing apparel therein contained, all of the value of $ 3,700, was destroyed by fire, that said house was close to the main of defendant, and situated at a place where, in the event a fire should there occur, it was the duty of defendant under said contract to furnish an adequate supply of water with force and power sufficient to extinguish such fire; which the defendant, without any providential or unavoidable accident, failed to do, and by reason of such failure plaintiff's property was destroyed, to his damage in the sum of $ 3,700.

I. It is well established law in this state, by a line of decisions extending from the year 1847 to the present date, " that a person for whose benefit an express promise is made in a valid contract between others may maintain an action upon it in his own name." Ellis v. Harrison, 104 Mo. 270, 16 S.W. 198; State ex rel. v. Gas Light Co., 102 Mo. 472; Fitzgerald v. Barker, 70 Mo. 685; Rogers v. Gosnell, 58 Mo. 589; Rogers v. Gosnell, 51 Mo. 466; Meyer v. Lowell, 44 Mo. 328; Robbins v. Ayres, 10 Mo. 538; Bank v. Benoist, 10 Mo. 519. And such is now the prevailing doctrine in America, by the great weight of authority. 3 Am. & Eng. Encyclopedia of Law, p. 863, note 5. This doctrine, originally an exception to the rule that no claim can be sued upon contractually unless it is a contract between the parties to the suit, has become so general and far reaching in its consequences, as to have ceased to be simply an exception, but is recognized, within certain limitations, as an affirmative rule.

The foregoing cases from this court, are in harmony with the rule as laid down in Lawrence v. Fox, 20 N.Y. 268, "that an action lies on a promise made by the defendant, upon valid consideration to a third party, * * * although the plaintiff was not privy to the consideration and that such promise is to be deemed made to the plaintiff if adopted by him, though he was not a party to, or cognizant of, it when made." Meyer v. Lowell, supra. "It is not every promise [however] made by one to another, from the performance of which a benefit may ensue to a third, which gives 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; Vrooman v. Turner, 69 N.Y. 280; Wright v. Terry, 23 Fla. 160, 2 So. 6; Austin v. Seligman, 18 F. 519; Burton v. Larkin, 36 Kan. 246, 13 P. 398, and cases cited. In other words, the rule is not so far extended as to give to a third person, who is only indirectly and incidentally benefited by the contract, a right to sue upon it." But "the name of the person to be benefited by the contract need not be given, if he is otherwise sufficiently described or designated. Indeed, he may be one of a class of persons, if the class is sufficiently described or designated." Burton v. Larkin, supra; Johannes v. Ins. Co., 66 Wis. 50, 27 N.W. 414.

In the opinion delivered by Allen, J., in Vrooman v. Turner (1877), supra, it was said: "Judges have differed as to the principle upon which Lawrence v. Fox and kindred cases rest, but in every case in which an action has been sustained there has been a debt or duty owing by the promisee to the party claiming to sue upon the promise. Whether the decisions rest upon the doctrine of agency, the promisee being regarded as the agent of the third party, who, by bringing his action adopts his acts, or upon the doctrine of a trust, the promisor being regarded as having received money or other thing for the third party, is not material. In either case there must be a legal right, founded upon some obligation of the promisee, in the third party, to adopt and claim the promise as made for his benefit."

An examination of very many cases decided before and since it was so held in that case, satisfies us that the rule has been confined to such cases in this state as well as elsewhere and upon that principle, when this case was before the Kansas City court of appeals in an action by another party (Ins. Co. v. Trenton Water Co., 42 Mo.App. 118), it was, in effect, held that the plaintiff had no cause of action against the water company because the town of Trenton was under no obligation to the plaintiff to furnish an adequate supply of water and power, to...