Jones v. . Water Co. , 135 N.C. 553 ( 1904 )

The defendant contracted with the town of Durham to put in a water plant (sec. 2) "to abundantly supply said town of Durham and its inhabitants with pure and wholesome water fit for all domestic purposes . . . (sec. 3), and will furnish at said hydrants at all points all water necessary for all fire extinguishing and other public purposes." (Sec. 5). "An adequate supply of water for the sprinkling with carts of all paved streets . . . and for (554) the extinguishment of fires." (Sec. 6). "That if at any time it shall fail to furnish an adequate supply for all fire and other public purposes, as herein stipulated," etc. There was evidence tending to show that the house of the plaintiff in said town was burned down because of an almost total lack of pressure; that the stream of water did not reach more than half-way to the eaves of the house, twenty feet being the greatest height to which the water was thrown.

There can be no real contention that the plaintiff, a citizen and taxpayer, and one of the beneficiaries in the purview of this contract, cannot prosecute this action. He is the real party in interest. He is taxed with payment of his pro rata of the annual rental. The town cannot maintain this action for the loss sustained by him by reason of the defendant's failure to perform the provisions of the contract above recited. For this injury the plaintiff alone can sue. This point was discussed and settled in Gorrell v. Water Co., 124 N.C. 598, 70 Am. St. Rep., 598, 46 L.R.A., 513, which has been followed in Fisher v.Water Co., 128 N.C. 375, and cited and approved in Lacy v. Webb,130 N.C. 546, and Gastonia v. Engineering Co.,131 N.C. 366, in which last the doctrine is elaborated. The same principle had been often affirmed prior to Gorrell's case, to wit, that the beneficiary of a contract, though not a party to it nor expressly named therein, can maintain an action for a breach of such contract causing injury to him, if the contract was made for his benefit. Among the many cases to that effect are Sherrill v. TelegraphCo., 109 N.C. 527 (action for failure to deliver telegram); S. c.,116 N.C. 658, and Shoaf v. Ins. Co., 127 N.C. 308; 80 Am. St. Rep., 804. This contract specifies that the defendant shall (555) furnish the town "and its inhabitants . . . all water necessary for fire extinguishing."

The real point in this case is that section 1 of the contract sets out that the defendant "shall provide means and apparatus which will enable it at all times within four minutes after a call for such pressure has been given by the proper officer of the fire department of said town, to furnish to said town for fire services ten fire streams from any ten hydrants to a vertical height of one hundred feet in still air, such stream being taken from the hydrant with one hundred feet of hose and a one-inch nozzle," subject to provisions in section 12, 13 and 14. These latter sections provide that if, on a test, the defendant gives only nine streams one hundred feet high within four minutes after notice, the rental of $4,000 (allowed if ten streams of required height are furnished) shall be reduced to $3,950; if only eight such streams, then only $3,850; if only seven, then the rental shall be $3,600, and so on down to five streams of requisite height and size. His Honor instructed the jury, that by virtue of these provisions that unless notice of four minutes, or other reasonable notice, was given the defendant the plaintiff could not recover. In this there was error. The pressure to throw ten streams and not less than five streams one hundred feet vertical in still air was an extraordinary pressure required upon four minutes' notice to show the capacity of the water plant and as a means of measuring the rental to be paid. This stipulation has no bearing upon the duty of the defendant to furnish a supply of water "adequate for the extinguishing of fires" as provided in sections 2, 3, 5 and 6 of the contract. These provisions in sections 2, 3, 5 and 6 were in force at all times, and it did not require four minutes' notice to make adequate the pressure which threw the water "only twenty feet high, being only halfway to the eaves." If the complaint had been that the ten (556) streams or seven streams of specified height and size were not furnished, then the four minutes' notice should be alleged and shown, but not in this case.

Error.

Cited: S. c., 138 N.C. 383; Water Co. v. Trustees, 151 N.C. 177;Hardware Co. v. Schools, ib., 509.