
    Blunk v. The Dennison Water Supply Co.
    
      Owner of property destroyed 5y fire — Through lach of water— ■ Cannot recover from water company — Which was under contract with municipality — To properly supply water for protection of citizens — Privity of contract.
    
    The owner of property which is destroyed by fire through the failure of a water company to furnish water and fire apparatus to the municipality in which it is situated and to the inhabitants thereof in accordance with its contract with the municipality cannot maintain an action against the company to recover the damages resulting therefrom; there being no legal obligation resting upon the municipality to afford him protection against fire, he is not privy to the contract by substitution.
    (No. 8571
    Decided January 3, 1905.)
    Error to the Circuit Court of Tuscarawas county.
    Plaintiff in error filed her original petition in the court of common pleas for the purpose of recovering from the defendant in error the value of her house which had been destroyed by fire owing to the failure of the water company to supply the village of Uhrichsville with water and apparatus sufficient in amount and character to afford due protection to its inhabitants against fire in accordance with the terms ■ of a contract between the municipality and the water company. The allegations of the petition with respect to the company’s obligation are in substance that on or about the eleventh day of February, 1888, the village for the purpose of protecting the property of the citizens against fire and causing them to be furnished with a sufficient quantity of water passed an ordinance authorizing the defendant to lay mains and pipes and to convey water thereby in and through the village and it was provided by the ordinance that the defendant was authorized to lay and maintain a system of pipes, conduits and hydrants along the streets and alleys of the village to supply the village and its inhabitants with water suitable for domestic, manufacturing and fire purposes. The company assumed the obligation to furnish machinery having power and capacity sufficient for fire protection and to maintain an adequate and efficient system. By the terms of the contract as alleged fifty-six frost proof hydrants of approved pattern and workmanship having double delivery were to be furnished by the water company; that the compensation therefor was to be derived by the village from a tax levied upon the taxable property of the city including that of the plaintiff; that the damage to the plaintiff resulted from the failure of the water company to comply with its said contract. The company demurred to the petition and in the court of common pleas the demurrer was sustained. On petition in error the judgment of the court of common pleas was affirmed by the circuit court.
    
      Mr. James A. D. Richards and Mr. John T. McCullough, for plaintiff in error.
    The contract shows upon its face that it was made for the personal benefit of the inhabitants of the village, which included the plaintiff.
    
      The defendant agreed to establish, lay down, maintain and operate a system of mains, conduits and. .hydrants, for the purpose of supplying the inhabitants of the village with water suitable for domestic, manufacturing and fire purposes, and so as to afford to its inhabitants the most adequate supply for domestic and manufacturing purposes and the greatest protection against fire. The contract repeatedly provides that defendant shall furnish to the inhabitants of said village a sufficient supply of good, wholesome water, suitable for domestic, manufacturing- and fire purposes, and that it shall maintain a system of water works complete in all its details, necessary for the supplying the inhabitants of said village-with good wholesome water for the aforesaid purposes ; and that said systein of water works should be-laid so as to furnish the inhabitants of said village-a complete, proper, adequate and efficient system so-that by means of said system it would furnish the-inhabitants of said village, at all times, an adequate supply of water suitable for fire purposes.
    Can not then a beneficiary under this contract, one-for whose benefit it was made and whose monies discharge its financial burdens, and thereby furnished' the consideration of it, maintain an action for its. breach?
    In Ohio, where a contract is made between two persons for the benefit of a third, such third person may sue upon it in its own name. Thompson v. Thompson et al., 4 Ohio St., 333; Crumbaugh v. Kugler, 3 Ohio St., 549; Manhattan Life Ins. Co. v. Smith, 44 Ohio St., 163; Emmitt v. Brophy, 42 Ohio St., 82.
    The name of the person to be benefited need not be-¡given in the contract if he is otherwise sufficiently ■designated or described.
    He may be one of a class of persons if the class is ¡sufficiently described or designated. Burton v. Larkin, 59 Am. Rep., 541; Johannes v. Insurance Co., 57 Am. Rep., 249.
    The defendant took upon itself the duty of furnishing water to all those who came within a certain ■class, viz.: “inhabitants.” It contracted expressly for a consideration, to furnish to these beneficiaries, •sufficient water for fire purposes.
    The rights and powers granted the defendant were upon the condition, coupled, with its express promise, that it would furnish ample water to the inhabitants for fire purposes; and having thus, upon sufficient consideration, assumed this duty, it became bound to carry out its contract.
    And where the positive contract, made for a sufficient consideration, is to do something for the benefit ■of a third party, that third party has a right of action for nonperformance.
    Reason and justice, regarding the sanctity of contracts require parties to do what they have agreed to do; and when a party, by his contract, creates a ■duty or charge upon himself, he is bound to make it good.
    We are sustained in our contention by the following cases: Paducah Lumber Co. v. Paducah Water Supply Co., 89 Ky., 340; Duncan v. Owensboro Water Co., 12 Ky. L. R., 35; Gorrell v. Greensboro Water Supply Co., 124 N. C., 328. We regard the logic in the last cited case unanswerable.
    
      Messrs. Healea & Healea, for defendant in error.
    The contention of the defendant in error, the decisión of the common pleas court below in sustaining the demurrer to the petition, and the judgment of' the circuit court affirming the common pleas, are-supported by the following authorities: The Akron W. W. Co. v. Brownless et al., 5 Circ. Dec., 1; 10 C. C. R., 620; Wheeler v. Cincinnati, 19 Ohio St., 19 ; Western College v. Cleveland, 12 Ohio St., 375; Boston Safe-Deposit & Trust Co. v. Ohio Water Co., 94 Fed. Rep., 238 (Salem, O.) ; Wright v. Augusta, 6 Am. St. Rep., 256 (Ga.); Becker v. Keokuk Water Works, 18 Am. St. Rep., 377 (Ia.); Fowler v. Athens City W. W. Co., 20 Am. St. Rep., 313 (Ga.); Willy v. Mulledy, 34 Am. Rep., 536 (N. Y.); Davis v. Clinton W. W. Co., 37 Am. Rep., 185 (Ia.); Nickerson v. Bridgeport Hydraulic Co., 33 Am. Rep., 1 (Conn.) ; Fitch v. Water Co., 47 Am. St. Rep., 258 (Ind.) ; Mott v. Cherryvale W. Co., 30 Am. St. Rep., 267 (Kan.); Howsmon v. Trenton W. Co., 41 Am. St. Rep., 654 (Mo.); Ferris v. Carson W. Co., 40 Am. Rep., 485 (Nev.); Eaton v. Fairbury W. W. Co., 40 Am. St. Rep., 510 (Neb.); House v. Houston W. W. Co., 31 S. W. Rep., 179 (Tex.); Foster v. Lookout W. Co., 3 Lea, 42 (Tenn.); Bush v. Artesian, etc., Co., 43 Pac. Rep., 69 (Ida.); Stone v. Uniontown W. Co., 4 Pa. Dist., 431; Beck v. Kittanning W. Co., 11 Atl. Rep., 300 (Pa.); Wainwright v. Water Co., 78 Kan., 146; Wilkinson v. Water Co., 28 So. Rep., 877 (Miss.); Britton v. Green Bay, etc., W. Co., 29 Am. St. Rep., 856 (Wis.); Phoenix Ins. Co. v. Trenton W. Co., 42 Mo. App., 118; Atkinson v. Newcastle, etc., Co., 2 Ex. Div., 441.
    In a later Kentucky case (Graves County Water Co. v. Ligon, 66 S. W. Rep., 725) the court held the water company liable to the citizen and refused to overrule the holding in that state, not upon the-ground of the correctness of the former holding, but upon the sole ground that the contract was made with reference, to the law as it then obtained in that state.
    We do not dispute the correctness of the holdings ^n the Ohio cases cited by counsel for plaintiff in error in their brief, but assert that they are not applicable to the. case at bar. “It is not every contract for the benefit of a third party that confers upon such third party the right to sue thereon.” The Akron W. W. Co. v. Brownless, 5 Circ. Dec., 1; 10 C. C. R., 620.
    A third person who is only indirectly and incidentally benefited by a contract has no right of action thereon. Howsmon v. Trenton W. Co., 41 Am. St. Rep., 654.
    The petition in the case at bar seems to have been drafted with reference to the North Carolina case of Gorrell v. Water Supply Co., 70 Am. St. Rep., 598, and great reliance is placed thereon by counsel for plaintiff in error in argument. This case was decided by a divided court, Faircloth, C. J., and Furches, J., dissenting, and the opinion therein, is based upon the ground, that the contract, though made between the city and the water company, was for the benefit of the citizen and taxpayer, and for that reason such citizen and taxpayer could recover thereon; that if it were not so the taxpayer is without remedy —“sustains damage for which there is no redress” — and that this is a complete “Reduotio ad absurdum. ’ ’
    
    We answer that if this view is correct, then the holdings of the Supreme Court of this state, in numerous cases, leads to the same result; and as closely bearing upon this question, we cite: Western 
      
      College v. City of Cleveland, 12 Ohio St., 375, and Wheeler v. City of Cincinnati, 19 Ohio, 19.
    ' If the reasoning in the North Carolina case, supra, is correct, then the application of the principles ■enunciated in these Ohio authorities would lead to the same “Beductio ad absurdum.” The taxpayer pays taxes to the municipality where the municipality owns and operates the water works, and yet he Is without the remedy of recovery against the municipality, because in relation to the construction .and operation of water works its acts are discretionary, legislative and governmental.
    We are unable to discern any reason to change this rule in a case like the one at bar, where the municipality, under the authority of the statute, contracts with the water company for a water supply. By such a contract the municipality delegates its authority to the water company for the consideration agreed to be paid, acts in its stead in furnishing and supplying public fire hydrants.
    Again the public good and public necessity requires that a municipality should not be held liable to the individual for damages in case of fires, as the ■expense incurred would render provisions for the ■extinguishment of fires impracticable if not impossible ; and for the same reason water companies are •not liable. Akron Water Works Co. v. Brownless, 5 Circ. Dec., 1; 10 C. C. R., 620.
    This is clearly an action ex contractu, and not an •action ex delicto. The charge of negligence as made in the petition is a mere conclusion, and no facts are therein set out constituting of showing negligence on the part of the defendant company, aside from its .alleged failure to perform its contract. They .amount to an allegation that the defendant company failed to perform its contract, and that such failure constituted negligence on its part.
    We maintain the law to be that the breach of duty of a party in failing to perform an express contract is not negligence in the legal sense, and that the remedy therefor, if any exists, is for breach of contract and not in tort. Shearman & Redfield on Negligence, Vol. 1 (5 ed.), secs. 2 and 116; House v. Houston W. W. Co., 31 S. W. Rep., 179; Mott v. Cherryvale W. Co., 30 Am. St. Rep., 267; Cooley on Torts, 90-91; Moak’s Underhill Torts, page 23, rule 7; page 24, rule 8; page 25; Fitch v. Seymour W. Co., 47 Am. St. Rep., 258; Fowler v. Athens City W. W. Co., 20 Am. St. Rep., 313.
   Shauck, J.

Remembering that the case presented

by the original petition is not affected by its argumentative averments, the question to be considered does not differ from that determined in the numerous cases given in the reporter’s abstract of the briefs. They are nearly, if not entirely, in accord with the judgment of the circuit court in the present case. Those in which a different view of the subject has been taken will receive ‘ sufficient attention if, following the suggestion of counsel for the plaintiff, we give due consideration to the principles involved in the inquiry. Their reliance is upon the proposition that an agreement made ón a valuable consideration by one person with another to perform an obligation to a third may be enforced by . such third person in his own name, as was held by this court in Crumbaugh et al. v. Kugler et al., 3 Ohio St., 544, and other cases following it. But an obligation to. the inhabitants of a municipality as distinct from that to the municipality itself arising out of contracts of. this character has been frequently asserted by the inhabitants and nearly as frequently denied by the courts. These cases proceed upon the familiar principle that contracts bind only the parties who have executed them and those who are in privity with them. The cases relied on by counsel for the plaintiff concede the principle stated, and they were supposed to be decided consistently with it. They are without exception cases in which a legal obligation rested upon the promisee in the contract sued upon towards the third person bringing the suit, and such obligation is indispensable to the application of the doctrine. The view upon which such obligation is thought to meet the requirements of the rule as to privity, is thus expressed in Vrooman v. Turner, 69 N. Y., 280.

“A legal obligation or duty of the promisee to him (the plaintiff) will so connect him with the transaction as to be a substitute, for any privity with the promisor, or.the consideration of the promise, the obligation of the promisee furnishing an evidence of the intent of the latter to benefit him, and creating a' privity by substitution with' the promisor. A mere stranger cannot intervene and claim by action the benefit of a contract between other parties.”

That such legal obligation from the promisee to the plaintiff is wanting in the present case is made clear by Wheeler v. Cincinnati, 19 Ohio St., 20, where it is decided that the municipality is not liable to individuals for failure to furnish apparatus for extinguishing fires. If a stranger to a contract were held entitled to secure the benefits which might incidentally result to him. from its performance, not only would an established rule of the law be violated, but parties entering into, contracts could not determine the extent of their obligations nor the numbers of those to whom they might be incurred. The view of the subject urged on behalf of the plaintiff finds even less support in the reasons involved than it does in the decided cases.

Judgment affirmed.

Davis, Price, Crew and Summers, JJ., concur.  