41 So. 76 | Ala. | 1906
The. overwhelming weight of authority is against the right of the plaintiff to maintain this action. The reason why he may not do so is that there is a want of privity between him and the defendant which disables him either from sueing for a breach of the contract or for the breach of duty growing out of the contract. It is impossible at this late day to say anything new upon the subject, and it would be affectation to attempt any elaborate discussion of the question involved. The reasoning which leads to the conclusion may be found in many, if not all, of-the following cases, which have been examined and which hold against the right of a plaintiff, under similar conditions, to recover damages for losses by fire occasioned by the failure of a waterworks company to furnish a supply of water as it had stipulated to do in its contract with the municipality. — Nickerson v. Bridgeport Hydraulic Co., 46 Conn. 24, 33 Am. Rep. 1; Foster v. Lookout Water Co., 3 Lee (Tenn.) 42; Davis v. Waterworks Co., 54 Iowa, 59, 6 N. W. 126, 37 Am. Rep. 185; Fowler v. Waterworks Co., 83 Ga. 219, 9 S. E. 673, 20 Am. St. Rep. 313; Ferris v. Water Co., 16 Nev. 44, 40 Am. Rep. 488; Becker v. Waterworks, 79 Iowa, 419, 44 N. W. 694, 18 Am. St. Rep. 377; Howsmon v. Trenton Water Co., 119
It is not true however, that the principle can be maintained to the full extent and in the unaqualified terms stated by the Supreme Court of North Carolina in the Gorrell Case supra. The same cases there cited were ex-
Much might be urged pro and eon as to the proper ground upon which to place nonliability, hut we have no desire to enter upon that field of disputation. It suffices for all practical purposes of this case to say tliat our own decisions, in which the opinions wore written by as able judges as ever occupied this bench, and in which there was no dissent, have rested the conclusion in similar cases involving public contracts upon thedeclation that there was a want of privity ;and this declaration has likewise been made by many other American
We recognize that the absence of a remedy by suit for damages for failure by a water company to furnish water for fire purposes, according to its contract with a city, haves the subject “in a.n extremely unsatisfactory position/' as stated in the note to Britton v. Waterworks Co., 29 Am. St. Rep. 856, 863, yet, as the learned annotator suggests, “the only security would seem to be in legislation or in the incorporation of some suitable provision in future contracts of this description, whenever the taxpayer desires to reserve a personal remedy against the water company.” It is not the function of a court to make law to fit hard cases.
The demurrer to the complaint was properly sustained.
Affirmed.