89 Ky. 340 | Ky. Ct. App. | 1889
delivered the opinion oe the court.
The buildings, machinery and other property of appellant, a corporation engaged in the lumber and planing-mill business in the city of Paducah, having been, in 1877, destroyed by lire, it instituted this action to recover damages therefor of appellee, also a corpora-
In the petition it is stated, in substance, that in consideration of the grant by the city of Paducah to appellee, as assignee of one Jones, of the franchise and right to construct, maintain and operate, for the term of forty years, water-works, including the laying of pipes and erection of hydrants in all the streets, avenues and public grounds of the city, and agreement to pay forty dollars annual rent for each of one hundred and fifty hydrants, besides the privilege given to charge and collect of »the inhabitants limited rates for private use of water, appellee agreed to erect upon a platform fifty feet high a stand-pipe twenty-two feet In diameter and one hundred and.seventy-five feet high, with which was to be connected the conducting pipes .and hydrants mentioned, and' also two pumping engines, each having capacity to force into the stand-pipe two million gallons of water every twenty-four hours, -and to keep a head of water sufficient to throw from .any eight of the hydrants simultaneously, and for five consecutive hours at any one period of time, streams through fifty feet of hose one hundred feet high, all of which works were completed and put in operation in 1885.
That appellee also agreed to have in the stand-pipe and conducting pipes, at all times, a supply of water sufficient to afford a head or pressure requisite for all domestic, manufacturing and fire protection purposes for all the inhabitants and property of the city, and to increase the number and length of hydrants and
It is further stated, that under a contract directly between them there had been erected previous to the-fire, on the same lot where the burned property was-situated, two hydrants, one within thirty and the other seventy feet of the place where the fire originated, and connected by pipes with the water-main, to be used by appellant to extinguish fires and for steam purposes, for which it had been paying rent toappellee, and that in consideration thereof appellee had agreed to furnish and have réady at all times-water sufficient to throw streams through hose kept by appellant in proper condition, to be connected with the two hydrants the height provided for in said contract between appellee and the city of Paducah; that the fire originated in a wood building situated on the lot of appellant and connected with its other-property, though occupied at the time by another ; but. said fire occurred without any fault or negligence of appellant or its servants, and it could and would have been extinguished before doing damage to the property of appellant if there had been the stipulated quantity of water in the stand-pipe and conducting pipes, or the pumping machinery had been in readiness to operate and the engineer and servants' of appellee had been present to set it in motion; for-
The grounds of demurrer are, in substance, that the facts stated in the petition and amendments do not constitute a cause of action in favor of the plaintiff against the defendant, which we will treat as involving two questions: (1) Whether there is vested in the plaintiff, appellant, such legal interest in the contract between the city of Paducah and the defendant, appellee, as to authorize it, in any event, to prosecute an action in its own name and for its own benefit. (2) Whether appellee can be legally made liable in damages for the alleged breach of contract.
Clearly appellant had a right to sue for a breach of the distinct contract set out in the petition, by which, in consideration of rent paid for use of the two hydrants on its own lot, water was agreed to be furnished directly to it by appellee. But we will consider the two questions just stated as they arise on the contract between appellee and the city of Paducah.
Authorities in some of the States hold the general rule to be that the plaintiff in an action on contract must be a person from whom • the consideration actually moved, and that a stranger to the consideration can not sue on a contract. But we think if there be, in fact, consideration for a promise or engagement made for the benefit of the person who sues, it is not ■essential for it to have passed directly from him to the person sued. It is not, however, important whether this case either comes within what is else
It thus follows that if the city of Paducah had power to make the contract as well for the personal benefit of its several inhabitants as for purely municipal purposes, and did so make it, appellant, being the real party in interest, became owner of the property destroyed, has the right to prosecute the action in its own name, if maintainable at all, and the city of Paducah, though made so, is not even a necessary party, because whatever interest it may have, or injury it may have sustained, is entirely distinct, if not remote.
Conceding, as must be done, existence of the alleged power of the city of Paducah under its charter to enter into a contract with another for construction and operation of water-works, the right and also duty attached to make it for the personal benefit of inhabitants within its corporate limits; for supply of water in a city for domestic and manufacturing purposes, and as safe
It is a rule co-existent with contracts that a party who has performed his part is entitled to reparation in some form for breach to his injury by the other. In equity he may sue for specific performance or rescission, neither of which is an appropriate or adequate remedy when the subject-matter of a contract is destroyed and no longer exists; but at the common law, where an actual injury to one of the parties has been caused by refusal or neglect of the other to do what he agreed to do, and received consideration for doing, damages commensurate with the loss thereby sustained may be recovered, and such right of recovery can not be regarded waived or relinquished unless clearly so provided in the contract.
It is not provided in the ordinance referred to, nor can it be fairly inferred, that appellee was not to an
It is, however, argued the damage sustained by appellant was not the natural and proximate consequence of the neglect complained of, and, therefore, no recovery can be had, and the case of Patch v. City of Covington, 17 B. M., 722, is cited to sustain the position. There the action was to recover in damages the value of a house destroyed by fire in consequence of failure on the part of the city of Covington to keep its public cisterns in repair, and to provide the fire company with hooks, ladders and other necessary apparatus. The fire originated in a building adjacent to that of the plaintiff; the firemen had reached the
Water-works, however costly and skillfully constructed and operated, are not potent enough to extinguish, with absolute certainty and at all events, every fire occurring in a city before destruction of, or serious injury to, the property ignited, nor are they ever made with such end in view; but it is entirely practicable by that means to supply water in such quantity and having such head or pressure as to usually extinguish a fire before serious damage is done when promptly and efficiently used; and parties to a contract like this must be presumed to have contemplated and agreed that such, in the natural order of things, would be the probable effect of a performance of it, else there would have been no rational motive, nor adequate consideration, for entering into it. But the degree of probability in every such case as this must of course depend upon the stage of the fire when water is applied, upon the efficiency of the firemen, and all other attendant circumstances and agencies favorable or adverse to arresting or extinguishing fires.
It seems to us if the contract before us is not to be treated as meaningless and totally ineffectual for every purpose, the parties to it must be regarded as having contemplated and assented to the consequences of non-performance, as well as the profit and advantage of performance, and, consequently, appellee is liable in this case for such damages as its failure or refusal to perform may have caused to appellant. The inquiry, therefore, is, whether, considering the pur
Wherefore, the judgment is reversed, and remanded with directions to overrule the demurrer, and further proceedings consistent with this opinion.
To a petition for rehearing, filed by counsel for appellee, Chief Justice Lewis delivered the following response of the court:
It is not necessary to even consider whether a municipal corporation cán be made liable for destruction by fire of property- of its individual inhabitants, because that question is not before us. But even assuming no action could be maintained in that case, still the doctrine of respondeat superior would not, as contended, avail to relieve appellee of its own liability, because the relation of principal and agent does not •exist in any sense between the city of Paducah and it. On the contrary, they entered into a contract, by which, for a valuable consideration, to be paid by taxation and by rents for private use of hydrants, appellee agreed, among other things, to keep a specified quantity of water in its stand-pipe at all times, i except on particular occasions mentioned, none of
Appellee did not covenant to prevent occurrence of fires, nor that the quantity of water agreed to be furnished would be a certain and effectual protection against every fire, and, consequently, does not in any sense occupy the attitude of an insurer; but it did undertake to perform the plain and simple duty of keeping water up to a designated height in the standpipe, and if it failed or refused to comply with that undertaking, and such breach was the proximate cause of destruction of appellant’s property, which involves questions of fact for determination of the jury, there exists no reason for its escape from answering in damages that would not equally avail in case of any other-breach of contract.
Petition for rehearing overruled.