Rodhouse v. Chicago & Alton Railway Co.
219 Ill. 596 | Ill. | 1906
delivered the opinion of the court:
The only question in this case is, whether or not the court below properly sustained the demurrer to the amended declaration. Upon this subject the Appellate Court, speaking through Mr. Justice Baume, expressed the following views in their opinion, deciding this case:
“Plaintiff in error predicates his right of action in this case generally upon an application of the recognized rule, that a third party, for whose benefit a contract is made, may maintain an action in his own name for a breach thereof. (Lawrence v. Oglesby, 178 Ill. 122; Webster v. Fleming, 178 id. 140). And upon the authority of Gage v. Springer, 211 Ill. 200, it is claimed that plaintiff in error has such a beneficial interest in the performance of the contract alleged, as will authorize a recovery for damages accruing to him by its breach. The suit is in implied assumpsit upon the contract, and we must look to the terms of the contract to determine whether it creates such a privity of relation between plaintiff in error and defendant in error, as will authorize a suit by the former against the latter to recover damages for its breach. There is nothing in the contract, which, either directly or by necessary inference, identifies plaintiff in error as a party to be benefited by it. But if the direct beneficial interest of plaintiff in error could properly be established extraneously of the contract by appropriate averments in the declaration, such averments are wanting in the declaration here involved. The averment that the contract was entered into for the purpose of protecting plaintiff in error, and the other owners and occupants of lands in the district by damage from overflow, and for the benefit of plaintiff in error and the owners and occupants of lands in said district, does not invest plaintiff in error with a special beneficial interest in the performance of the contract, or establish that defendant in error owed a duty to plaintiff in error other than that owing to all the owners of lands in the district. It was said in Gage v. Springer, supra: ‘No private action will lie for damages of the same kind as those sustained by the general public, although the plaintiff may be damaged in a much greater degree than any other person.’
“It is, however, contended by plaintiff in error that he brings himself within the class, to whom defendant in error owed a special duty, under the holding in Gage v. Springer, supra, because the cost of the repair and maintenance of the levee is necessarily contributed by the owners of lands in the district according to the benefits accruing to each tract of land therein. The declaration contains the allegation, that plaintiff in' error is the owner of certain described lands, and that said lands are within the limits of Sny Island levee drainage district, but it is not alleged that said lands have been, or will be, assessed for any benefits on account of the work to be performed by defendant in error under the contract declared on, or that plaintiff in error has been or will be called upon to pay any part of the contract price of $25,-000.00 for benefits accruing to his lands by the performance of the contract, tinder the provisions of the Drainage act, it may or may not be ascertained and determined that the lands, alleged in the declaration to belong to plaintiff in error and to lie within the district, will be benefited by the work contemplated in the contract. If it has not been ascertained and determined that said lands will be benefited by the construction, repair and maintenance of the levee mentioned in the contract, plaintiff in error has no such special interest in its performance, as will authorize a suit by him to recover damages for its breach.
“For lack of privity of contract between the parties, and because it does not appear that defendant in error owed to plaintiff in error any special duty to perform the contract here involved, the demurrer to the declaration was properly sustained, and the judgment is affirmed.”
We concur in the foregoing views expressed by the Appellate Court, and adopt the same as the opinion of this court in this case. .
Accordingly, the judgment of the Appellate Court affirming the judgment of the circuit court, is affirmed.
Judgment affirmed.
