119 Mo. 304 | Mo. | 1893
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
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 $3,70.0, 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 aline 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; State ex rel. v. Gas Light Co., 102 Mo. 472; Fitsgerald 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. 539; Bank v. Benoist, 10 Mo. 521. And such is now the prevailing doctrine in America, by the great weight
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 Flor. 160; Austin v. Seligman, 18 Fed. Rep. 519; Burton v. Larkin, 36 Kan. 246, 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.
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 extinguish the fire by which the premises were consumed. And in support of its position the following additional cases were cited: Davis v. Water Works Co. 54 Iowa 59; Nickerson v. Hydraulic Co., 46 Conn. 24; Ferris v. Water Co. 16 Nev. 44; Fowler v. Water Works Co., 83 Ga. 219; and Atkinson v. Waterworks, Co. 2 L. R. Exch. Div. 441.
The last of these cases is not in point since the action in that case was for the breach of a public statutory duty and the court held that the action would not
In the Iowa case, decided in 1880, it was replied: “The city, in exercise of its lawful authority, to protect the property of the people, may cause water to be supplied for extinguishing fires and for other objects demanded by the wants of the people. In the exercise of this authority it contracts with defendant to supply the water demanded for these purposes * * * It cannot be claimed that the agents or officers of the city employed by the municipal government to supply water, improve the streets, or maintain good order, are liable to a citizen for loss or damage sustained by- reason of the failure to perform their duties and obligations in this respect. They are employed by the city and responsible alone to the city. The people must trust to the municipal government to enforce ¡the discharge of duties and obligations by the officers, and agents of that government.” In the Nevada case deci
In the Georgia case, decided in 1889, in an opinion by Bleckley, O. J., it was replied: “The present case is not based upon the breach of a statutory duty, but solely upon failure to comply with a contract made with the municipal government of Athens. To that contract the plaintiff was no party, and the action must fail for the want of the requisite privity between the parties before the court. * '* ’* There being no ground for recovery, treating the action as one ex contractu, is it better founded treating it as one ex delicto? We think not. The violation of a contract entered into with the public, the breach being made by mere omission or non-feasance is no tort direct or indirect, to the private property of an individual, though he be a member of the community and a taxpayer to the government. Unless made so by the statute, a city is not liable for failing to protect the inhabitants against the destruction of property by fire. Wright v. Augusta, 78 Ga. 241; 7 Am. and Eng. Encyclopedia of Law, p. 997, et seq.”
The case in hand is on the contract, made by the water company with the town of Trenton, and the only feature that it presents that can take it out of the principle laid down in these cases is that provision was
The argument'was met by the supreme court of Iowa in Becker v. Waterworks, 79 Iowa, 419, decided in 1890, probably not published when this question was before the Kansas City court of appeals in the following manner: First. “The chief question raised by the demurrer was considered in Davis v. Waterworks Co., 54 Iowa 59, and decided adversely to the claim now made by plaintiff. But he contends that this case differs from that in several material particulars. In this case a special fund was raised by the city to pay for a sufficient supply of water for use in case of fires, and to that fund plaintiff contributed. It is said that in making the contract and in-levying and collecting the taxes required by its provisions, the city acted as a mere agent. We do not think the fact that the city levies and collects a tax to be paid to defendant creates any privity of interest between defendant and the taxpayers. In making the contract, the city discharged one of the duties for which it was created; and in raising the required money it only provided the consideration due from it by virtue of the contract. It will hardly be claimed that defendant could proceed against a taxpayer, in the first instance, for any unpaid money due under the contract from the city * *
The town of Trenton, under its charter, had power to pass ordinances “to prevent and extinguish fires” (Laws, 1856,-p. 353), and as incident thereto power to contract for a supply of water for that purpose. But it would seem under the authorities cited, the plaintiff can not maintain this action for cogent reasons, which have and may be put in several ways:
First. Although it was within the power of the town by contract to supply water for the purpose of extinguishing fires, it did not owe the duty of extinguishing fires to plaintiff. Heller v. Sedalia, 53 Mo. 159.
Second. A municipal corporation in making contracts for the benefit of its citizens acts for them collectively, and for all of them in every act, and the relation of privity is not, and can not be introduced into such contracts, by reason of taxpaying, or the discharge of any civil duty by any individual citizen.
Third. The benefits to be conferred upon the individual citizen by the contract is incidental to the contract, the primary object of which is the benefit of all the citizens in their corporate capacity.
Fourth. It does not clearly appear that the benefit was intended for the citizens in their individual capacity, but may have been intended for the protection of the municipality, and in the absence of express power in the municipality to make contracts for the indemnity of its individual citizens, should be so construed. City ex rel. v. O’Connell, 99 Mo. 357.
Fifth. .The relation that the contractor sustained to the town was that of its agent or servant to carry out the obligations of the contract upon its part for the benefit of all the citizens of the municipality. And for the enforcement of the terms thereof the citizens must look to the authorities of the city, and can not individually maintain an action for a breach of the contract.
, Sixth. The town had no authority to make a contract to indemnify the plaintiff for the loss of his property by fire resulting from the neglect of its agents or servants to furnish an adequate supply of water to put it out, and therefore could not make such a contract that would be binding on another.
The plaintiff’s contention also receives some support from the reasoning of Judge Thompson in Lampert v. Gas Light Co., 14 Mo. App. 376, according to whose views, it would seem that the contract declared upon here should raise, on the part of the defendant, a public duty to be performed for the benefit of the inhabitants of the town distributively, and for the negligent nonperformance of that duty an action would lie by the town “suing upon the contract, or by any individual specially damaged thereby, proceeding as for the nonperformance of a public duty and setting up the contract by way of inducement.”
As before stated, the suit here is upon the contract, and not against the water company for the negligent nonperformance of a public duty, and these views have simply persuasive force. At all events the position of the Kansas City court of appeals, and the ruling of the court below in this case is sustained by the weight of authority, and the judgment herein will be affirmed.