134 A. 807 | Conn. | 1926
The case of Baurer v. Devenis,
We turn to the claims made in behalf of the Prindles. In the case of Nickerson v. BridgeportHydraulic Co. (1878)
In Nickerson v. Bridgeport Hydraulic Co., supra, it was alleged in the complaint that the Hydraulic Company was chartered and organized to supply the inhabitants of Bridgeport with water, and contracted with the city to supply the city hydrants with water, and by their neglect to do so the fire department of the city was not able to extinguish a fire occurring in the city; we held that under such allegations the plaintiff inhabitants had no cause of action against the Hydraulic Company, and we say (p. 27): "It is true the count states that the defendants are a corporation, organized to supply the inhabitants of Bridgeport with water to extinguish their fires. But does this create an obligation to supply the water without anything more? A corporation is organized to manufacture woolen goods and sell them in the market. Does this create an obligation to manufacture the goods, and supply them to A, whether he pays anything for them or not? It is not alleged in the count that the plaintiffs ever paid anything, or even promised to pay anything to the defendants for a supply of water to extinguish their fires." The court thus conclusively demonstrated that the mere fact of the organization of the defendant as a corporation to supply the inhabitants of Bridgeport with water to extinguish their fires did not create any obligation upon it to do so upon which a cause of action for failure or neglect to do so could *156 be based, and intimates that some contract or agreement to do so must be alleged.
The plaintiffs then sought to establish such a contract, by alleging a contract between the city and the Hydraulic Company; and as to this claim, among other things, we say (pp. 29, 30): "We think it is clear that there was no contract relation between the defendants and the plaintiffs, and consequently no duty which can be the basis of a legal claim." This was a holding that the plaintiff inhabitants and the city were not in privity in the contract between the city and the Hydraulic Company. We also say: "The city owed a public duty to the plaintiffs to extinguish their fire. The hydrants were not supplied with water, and so the city was unable to perform its duty."
In German Alliance Ins. Co. v. Home Water SupplyCo.,
We shall now consider the question whether the citizens of the Sharon Fire District are in privity with the district in its contract with the Sharon Water Company. In the case of Baurer v. Devenis, supra, we may properly be held to have brought our law into *157 harmony with the law as now generally established, to the effect "that a person for whose direct and exclusive benefit an express promise is made in a valid contract between others may maintain an action upon it in his own name."
The question now before us arose in an almost identical situation, and was dealt with in Howsmon
v. Trenton Water Co.,
These reasons are in conformity with our opinion *158
in Baurer v. Devenis,
The questions involved in the instant case arose in the United States District, Circuit, and Supreme courts, in the case of the German Alliance Ins. Co. v.Home Water Supply Co. See
The United States Supreme Court in the former case had before it substantially the questions presented to us in the case at bar. In dealing with the question of privity of contract in an inhabitant of a municipality in a like contract of the municipality with a water company, the court considered the matter of privity at length on pages 228 and 233 inclusive of the opinion; from the opinion a few excerpts may well be included here; on page 228 et seq., the court says: "Although for nearly a century it has been common for private corporations to supply cities with water under this sort of agreement, we find no record of a suit like this prior to 1878, when the Supreme Court of Connecticut, in a brief decision (Nickerson v. HydraulicCo.,
The different conclusions reached in three States —Paducah Lumber Co. v. Paducah Water Supply Co.,
Because of our own decision in Nickerson v. HydraulicCo., supra, and the holding in Howsmon v.Trenton Water Co., supra, and also in German AllianceIns. Co. v. Home Water Supply Co., supra, and the law as set forth in Williston on Contracts, Vol. 1, §§ 372a, 373, 374, we are satisfied that the plaintiffs were not in privity with the Sharon Fire District in its contract with the defendant, and hence had no cause of action against the defendant.
In German Alliance Ins. Co. v. Home Water SupplyCo.,
The conclusion that a property owner has no claim against a water supply company for failure to conform to the contract, does not deprive him of any right, for had the municipality been guilty of the same acts no suit could be maintained.
The defendant in its brief cites forty-one cases holding in conformity with our case of Nickerson v. BridgeportHydraulic Co., supra. This list might have been indefinitely extended, and so overwhelming is the weight of authority and supported as it is by the case of German Alliance Ins. Co. v. Home Water SupplyCo., supra, decided in 1912, we do not feel justified in extending the discussion further. The principle determined in Baurer v. Devenis, supra, has no application to the present case, which is controlled by the principle of governmental immunity.
There is no error.
In this opinion the other judges concurred.