39 So. 91 | Ala. | 1905
This action was brought by plaintiff to recover damages for an alleged breach of duty by defendant in failing to supply to plaintiff water for his use in and about carrying on his business as a florist.
The first count of the complaint, as originally filed, after averring that defendant was engaged in the business of supplying water to the citizens of Bessemer for hire or reward, alleges “that he (plaintiff) constructed his said works and entered into and carried on his said business with reference, in accordance and adjusted to the water supply so furnished by defendant and under a contract or agreement with defendant, in accordance with its custom and usage in operating said water works system, for a sufficient supply of water for the plaintiff to use in and about his said business so that plaintiff avers, it became and was the duty of the defendant in the performance of its said public service in operating its said water works system, to furnish the plaintiff with all necessary water for the purpose of watering and sprinkling his said flowers,' shrubbery, etc., and for other purposes in and about his said business and plant. And plaintiff avers that the defendant did so furnish him with water for said business and plant until the spring of 1901, when the defendant disregarding its duty to the plaintiff as above said, negligently failed and refused to furnisli plaintiff with the necessary water,“ etc., etc.
No consideration for the contract is here alleged. Newton v. Brooks, 134 Ala. 269. But if it be said that the count shows a partial performance by defendant of the contract alleged, and, therefore, no consideration for it need be averred, it is not shown, except perhaps inferentially, that it was binding upon the parties at the time defendant failed or refused to furnish the water.
Non constat, the refusal or failure to supply the water was due to plaintiff’s failure to perform Ms allegations under the contract.
As said by the supreme court of Conneticut in Nickerson v. Bridgeport Hydraulic Co. (33 Am. Rep. 2), in passing upon the sufficiency of a count very similar to this one, by which it was sought to recover damages suffered on account of the negligent failure of the water company to furnish plaintiff water to extinguish fire;
The demurrer to the first count was properly sustained. For the same reasons the second count as originally framed was subject to the demuiTer interposed to it.
Subsequently these counts were amended by a substitution of new counts. In these substituted counts, no contract between plaintiff and defendant is averred or attempted to be. Nor is it alleged that the defendant was under any contractual obligation with the city of Bessemer to furnish the water to plaintiff. It is true it is averred that defendant has the exclusive right to furnish water to the citizens of Bessemer under and by a franchise granted it by the authorities of said city; and it may be inferred arguendo, from the allegations, that
It is not alleged, however, what rate this plaintiff was to pay, or the city was to pay for him or that he or the city ever paid or were under any obligations to pay at all. Certainly the defendant was not to furnish water to plaintiff gratitiously. The counts were clearly bad.
As said by Mr. Farnham, in his recent work on Water and Water Bights (Vol. 1) p. 842; “The question of the right of the consumer to maintain an action against the water company for failure to furnish a supply resolves itself into two elements. The first involves his right to sue for failure to comply with the implied contract which the company assumed, to furnish water for private needs in consideration of the rates of taxes assessed against the consumer for the supply furnished. And the second involved his right, as one of the public, to sue for special injury to him because of the breach by the company of its contract with the municipality to furnish a supply of water for general public needs. With respect to the first question there need be little difficulty. When a private citizen pays for water to be furnished by the supply company he enters into direct contract with the company and is entitled to receive the supply; and in case it is not furnished or the liability is bad as to cause injury to him, he has a right of action for the breach of the contract. * * * * * The second question, namely, that of the right of a private citizen to sue as one of the public specially injured for breach 'of the company’s contract, with the municipality, is not so easily solved.” The author then proceeds to review the cases, involving the question last adverted to and to state his notion of the law, that should control in the solution of that question. It is, however, not necessary here to follow him further, since, as we have said above, no contract is shown between the city and the defendant to furnish the water to plaintiff; and, indeed, if such a contract, was averred, the authority of the city to bind itself by it might seriously be questioned, pertaining as it must necessarily to the private needs of plaintiff rather than to general public needs.
The second amendment, after issue was taken on the pleas, seems to have been wholly voluntary, and so emasculated the first that it rendered the counts as thus amended unintelligible. Tlhe third and fourth counts, which were also added by way of amendment, are so patently defective, it is unnecessary to point out specially their defects. They will readily appear when read in the light of the principles declared above.
It follows from what we have said that the court properly sustained demurrers to each of the counts, and the judgment must be affirmed.
Affirmed.