42 Mo. App. 118 | Mo. Ct. App. | 1890
Plaintiff, a fire insurance company, sued the defendant, a water company, for damages alleged to have resulted on account of having to pay a fire loss on a policy issued on a dwelling, belonging to one of its patrons. The circuit court sustained a demurrer to the petition as not stating a cause of action. Plaintiff stood on its petition, and appeals here. The petition, in substance, alleges defendant had accepted and fully agreed to, ratified and was pretending and assuming to act under, and receive the benefits of, certain ordinances of the town of Trenton, in Grundy county, Missouri, one of which said ordinances is entitled, “An ordinance in relation to the establishment, construction and maintenance of water works in the town of Trenton, Grundy county, Missouri,” and the other of said ordinances, entitled “An ordinance providing for the adjustment of all matters of difference between the
The plaintiff was not a party to the contract embodied in the ordinances, and the first 'question presenting itself is, is it privy to such contract ? There is a rule of law usually illustrated in this way: If A owes C, and B owes A, and A and B contract that B shall pay A’s debt to C, the latter may sue B on the contract though he was no actual party to it, it being made for his benefit and presumed to have been accepted by him. Whatever reason has been given for this rule, or whatever principle it may have been held to spring from, in all case's where such an action had beensustained, there
In the case at bar, the contracting parties were the city of Trenton and the water company. The insurance company is the third party suing and wanting to obtain the benefit of the promise of the. water company made to the city. But an essential element is lacking. The city owes no legal duty to the insurance company to furnish water with which to extinguish fires.
II. The case can be made to appear with greater clearness, perhaps, by this suggestion : The insurance company can have no greater rights than the assured whose house was burned. Conceding, therefore, that it stands subrogated to whatever right the assured had, what are his rights in a' case of this sort against the water company? None whatever. Davis v. Water Co., 54 Iowa, 59; Nickerson v. Hydraulic Co., 46 Conn. 24; Ferris v. Water Co., 16 Nev. 44; Fowler v. Water Co., S. C. Georgia, 1889 ; Atkinson v. Water Co., 2 L. R. Exch. Div. 441. There is no privity of contract between the parties, nor is there anything in the relation of the parties to bring them within the principle above adverted to. It is true, as was said in Davis v. Water Co., supra: “The city, in the 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. The plaintiff received benefits from the water ,thus supplied in common with all the people of the city.” But the court continues: “These benefits she receives just as she does other benefits from the municipal government, as the benefits enjoyed on account of improved streets,
We have examined authorities cited by plaintiff, and believe them not applicable to the case under the view we have taken.
Our opinion is the trial court ruled right on the demurrer and the judgment, with the concurrence of the other judges, will be affirmed.'