Mott v. Cherryvale Water & Mfg. Co.

• Decision Date: 06 February 1892
• Citation: Mott v. Cherryvale Water & Mfg. Co., 48 Kan. 12, 28 P. 989 (Kan. 1892)
• Court: Kansas Supreme Court
• Parties: B. H. MOTT v. THE CHERRYVALE WATER & MANUFACTURING COMPANY

28 P. 989

48 Kan. 12

B. H. MOTT v. THE CHERRYVALE WATER & MANUFACTURING COMPANY

Supreme Court of Kansas

February 6, 1892

Error from Franklin District Court.

ACTION by B. H. Mott against the Cherryvale Water &amp Manufacturing Company, to recover damages sustained by fire through defendant's failure to furnish sufficient water to extinguish the fire. Verdict for plaintiff, and from an order granting defendant a new trial he brings error.

Judgment affirmed.

Mechem & Smart, for plaintiff in error.

John W Deford, for defendant in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

B. H. Mott brought his action against the Cherryvale Water & Manufacturing Company for $ 700 damages. He alleged in his petition that the defendant is a corporation having the right to construct, maintain and operate a system of water-works in the city of Ottawa, in this state, and has carried on that business under an ordinance enacted by the mayor and council of said city; that on May 2, 1887, he was a citizen and resident of Ottawa and owned personal property, then in his place of business, on block 71, which was, on that day, burnt up without his fault; that it was, by the terms of said ordinance, defendant's duty to furnish a water pressure of 65 pounds within seven minutes after a fire alarm, 75 pounds within 10 minutes, and thereafter, during the fire, a sufficient supply for fire protection; the alarm to be given by the bell, such pressure to be determined by the register in the engine house; that defendant agreed, by the terms of the ordinance, "that it would pay all damages that might accrue to any citizen of the city by reason of a failure on the part of defendant to supply a sufficient amount of water, or a failure to supply the same at the proper time, or by reason of any negligence of the defendant;" that the alarm was given at 1:45 A. M., but defendant failed and neglected, within seven minutes thereafter, to furnish a water pressure of 65 pounds, and within 10 minutes a pressure of 75 pounds, and thereafter, during the fire, a sufficient supply of water for fire protection; that, by reason thereof, his goods were consumed by the fire. Defendant answered, admitting that it was a corporation, as alleged; denying, "all and singular," the other allegations of the petition, and averring "that there is and always was a total want of consideration for the supposed and pretended contract, alleged in the petition." Upon the trial, a verdict was rendered for the plaintiff for $ 200. Defendant filed its motion for a new trial, which was granted. The plaintiff excepted, and brings the case here.

The trial court, in granting the motion for a new trial, ruled that the clauses of the contract and ordinance between the water and manufacturing company and the city of Ottawa did not give the plaintiff a right to recover the damages alleged in his petition, there being no privity of contract between him and the city of Ottawa, and no legal obligation from the city to the plaintiff upon which it could contract for indemnity. The ruling of the trial court is fully sustained by the great weight of the authorities--by all, or nearly all, of the decisions. The fact that a city levies and collects a tax to be paid to a water company does not create any privity of interest between the water company and a citizen or a resident of the city. In making such contract, the city discharges one of its duties for which it was created, and in raising the required money it only provides the consideration due from it by virtue of the contract. A water company could not proceed directly against a citizen or resident in the first instance for unpaid money due under the contract from the city. " Municipal corporations have and can exercise only such powers as are expressly granted to them by law, and such incidental ones as are necessary to make those powers available, and are essential to effectuate the purposes of the corporation; and those powers are strictly construed. The law which authorizes cities to contract with individuals and companies for the building and operating of water-works confers no powers upon a city to make a contract of indemnity for the individual benefit of a citizen or resident of the city for a breach of which he can maintain an action in his own name." Under the powers conferred by the statute upon cities in this state, a city making a contract with a water company to furnish water for fires, etc., is not liable to its citizens or residents on account of the failure of the company to furnish water or to perform the conditions of the...