Jones v. Durham Water Co

• Decision Date: 24 May 1904
• Citation: 47 S.E. 615,135 N.C. 553
• Court: North Carolina Supreme Court
• Parties: JONES . v. DURHAM WATER CO. et al.

47 S.E. 615

135 N.C. 553

JONES .

v.DURHAM WATER CO. et al.

Supreme Court of North Carolina.

May 24, 1904.

MUNICIPAL CORPORATIONS—FIRE PROTECTION— CONTRACTS—ACTIONS—PARTIES.

1. Where a water company contracts to supply a town and its inhabitants with water for extinguishing fires, a property owner may maintain an action against the company in his own name for a loss sustained by failure to supply water for extinguishing a fire.

2. Under a contract with a water company to supply water for extinguishing fires, requiring that it shall provide pressure on four minutes' notice to throw ten streams a certain height, a property owner, suing for damages for failure to furnish water for the extinguishment of a fire, need not show that notice was given the company, as such provision was for an extraordinary pressure to show the capacity of the plant.

Appeal from Superior Court, Durham County; C. M. Cooke, Judge.

Action by R. M. Jones against the Durham Water Company and others. From a judgment for defendants, plaintiff appeals. Reversed.

Boone & Reade and Manning & Foushee, for appellant.

Winston & Bryant and Fuller & Fuller, for appellees.

CLARK, C. J. The defendant contracted with the town of Durham to put in a water plant (section 2) "to abundantly supply said town of Durham and its inhabitants with pure and wholesome water fit for all domestic purposes;" (section 3) "and will furnish at said hydrants at all points all water necessary for all fire extinguishing and other public purposes;" (section 5) "an adequate supply of water for the sprinkling with carts of all paved streets * * * and for the extinguishment of fires;" (section 6) "that if at any time it shall fail to furnish an adequate supply for all fire and other public purposes as herein stipulated, " etc. There was evidence tending to show that the house of plaintiff in said town was burned down because of an almost total lack of pressure; that the stream of water did not reach more than half way to the eaves of the house, 20 feet being the greatest height to which the water was thrown. There can be no real contention that the plaintiff, a citizen and taxpayer, and one of the beneficiaries in the purview of this contract cannot prosecute this action. He is the real party in interest. He is taxed with payment of his pro rata of the annual rental. The town cannot maintain this action for the loss sustained by him by reason of the defendant's failure to perform the provisions of the contract above recited. For this injury the ，

plaintiff alone can sue. This point was discussed and settled in Gorrell v. Water Co., 124 N. C. 598, 32 S. E. 720, 46 L. R. A. 513, 70 Am. St Rep. 598, which has been followed in Fisher v. Water Co., 128 N. C. 375, 38 S. E. 912, and cited and approved in Lacy v. Webb, 130 N. C. 546, 41 S. E. 549, and Gastonia v. Engineering Co., 131 N. C. 366, 42 S. E. 858, in which last the doctrine is elaborated. The same principle had been often affirmed prior to Gorrell's Case, to wit, that the beneficiary of a contract, though not a party to it, nor expressly named therein, can maintain an action for a breach of such contract, causing injury to him, if the contract was made for his benefit. Among the many cases to that effect are Sberrill v. Tel. Co., 109 N. C. 527, 14 S. E. 94 (action for failure to deliver telegram); Id., 116 N....