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Eaton v. Fairbury Water-Works Co.

ing it was required by said ordinance to make such provision. There was a detailed description of the property destroyed and a statement of its value, and a prayer accordingly.

On April 7, 1890, there was filed a general demurrer to said petition, which, on the 11th day of the same month, was overruled, and two days thereafter a judgment was rendered against the water-works company for the full amount claimed in the petition aforesaid. On the 5th day of the month following, the water-works company filed in said court its petition praying that the aforesaid judgment be set aside and that said water-works company be admitted to defend against the claim set up in said petition. The grounds upon which this relief was sought were that the attorneys for the water-works company had been misled as to the time when the demurrer aforesaid could be taken up and presented for determination, and therefore had failed to appear on or before the 11th day of April aforesaid to present the defense of said company. It was claimed that this misunderstanding, in the main, was attributable to a telegram received from the attorneys for Martin L. Eaton by the attorneys for the water-works company, a contention sustained by the district court, and which, as a question of fact decided upon conflicting evidence, will be treated as correct and therefore will receive no further notice. To the petition to open the judgment there was filed a general demurrer, after which was filed an answer putting in issue the several matters alleged in said petition, to which answer there was a reply. Upon a trial of these issues the district court made the following finding and order, to-wit:

"This cause coming on to be heard upon the petition of the plaintiff and the evidence, on consideration whereof the court finds that without fault or negligence on the part of the plaintiff herein it was prevented from appearing and making its defense in cause No. 47, docket F, of this court,

Eaton v. Fairbury Water-Works Co.

wherein the plaintiff herein was defendant, by the acts of said Eaton and his attorneys as in plaintiff's petition alleged, and that said judgment should be vacated and set aside, but at the costs of the plaintiff herein; the court is not attempting to settle the merits of the case of said Eaton against the water-works company, and makes no finding as to the merits of said defense of said water-works company in said action. It is therefore considered that the judgment heretofore rendered in cause No. 47, docket F, wherein Martin L. Eaton is plaintiff and the said water-works company is defendant, be, and hereby is, set aside and vacated and a new trial granted in said cause at the costs of the plaintiff herein of the former trial. It is ordered that said cause be placed upon the trial docket for trial in its order. To which acts and doings of this court all and singular the said Eaton duly excepts."

From this order awarding a new trial and vacating a former judgment in his favor the plaintiff in error brings the cause in which said order was made for review to this court. As some of the matters considered by the district judge were such that they must have transpired under his observation-such as, for instance, whether the order overruling the demurrer was entered upon being regularly reached upon call of the trial docket-we shall not attempt to review his findings that, without fault upon the part of the water-works company, or its attorneys, it was prevented from making a defense. The sole question remaining for our consideration then is, whether or not the petition of Eaton against the water-works company stated a cause of action.

Plaintiff in error predicates his right to maintain an action against the water-works company upon the following provision of the ordinance under which the water-works company, as assignee of the rights of A. L. Strang, operated its water-works: "The grantee (A. L. Strang or his assignee) shall constantly, day and night (except in the case of an una

Eaton v. Fairbury Water-Works Co.

voidable accident), keep all the hydrants supplied with water for instant service, and shall keep them in good order and efficiency." It is insisted in argument that this provision, while made with the city, was for the benefit of the taxpayers, and that therefore it was a contract for the benefit of plaintiff upon which he might bring suit for its violation to the detriment of plaintiff. The decision of this court relied upon to sustain this position is that of Shamp v. Meyer, 20 Neb., 223. As that case illustrates well the class of cases to which is applicable the principle that where a promise is made by one for the benefit of another, suit may be brought for the enforcement of such promise by the beneficiary, it should receive more than a mere passing notice. In that case Meyer was a member of the firm of Noring & Meyer, which had assumed the performance of the promise of its predecessor, one of which was to pay all the indebtedness of its predecessor, a firm of which Shamp was a member. This was not done, but Shamp was compelled to pay said indebtedness provided against, and thereupon sued Meyer for the amounts which he had thus been compelled to pay. This undertaking of the firm, of which Meyer was a member, was founded upon a valuable consideration, and it was held that though the consideration did not move directly from Shamp to the firm of which Meyer was a member, yet it did move from the parties with whom Meyer's firm contracted and was enforcible at the suit of Shamp, on the same principle as where in a deed, the payment of a mortgage is assumed absolutely, suit may be brought by the mortgagee against the party who thus assumed payment. In the case at bar, however, Eaton was not in any way recognized as either a party or a beneficiary, so that the authority cited in no way aids his contention. If his action could at all be maintained, it must be upon grounds different from those considered in Shamp v. Meyer, supra, for, as we have observed, there is no express provision in the ordinance in his favor. The case most

Eaton v. Fairbury Water-Works Co.

nearly in point cited by plaintiff favorable to his right of recovery is that of Paducah Lumber Co. v. Paducah Water Supply Co., 12 S. W. Rep. [Ky.], 554, in which there were general provisions as to the manner in which payment should be made the supply company; i. e., by a general tax. As a demurrer was sustained to the petition, its averments of fact controlled the decision of the court, as clearly appears from the language of that opinion. After reciting the above manner of raising water rental by general tax, and the agreement of the water supply company in consideration thereof to supply fire protection, which, it was alleged, it had failed to do to plaintiff's loss, the opinion proceeds in this language:

"It is further stated that under a contract directly between them there had been erected, previous to the fire on the same lot where the burned property was situated, two hydrants, one within thirty and the other seventy feet of the place where the fire originated, and connected by pipes with the water-main, to be used by appellant to extinguish fires, and for steam purpose, for which it had been paying rent to appellee, and that in consideration thereof appellee had agreed to furnish and have ready at all times water sufficient to throw streams through hose kept by appellant in proper condition, to be connected with the two hydrants, the height provided for in said contract between appellee and the city of Paducah; that the fire originated in a wood building situated on the lot of appellant, and connected with its other property, though occupied at the time by another, but said fire occurred without any fault or negligence of appellant or its servants, and it could and would have been extinguished before doing damage to the property of appellant if there had been the stipulated quantity of water in the stand pipe and conducting pipes, or the pumping machinery had been in readiness to operate, and the engineer and servants of appellee had been present to set it in motion; for immediately after

Eaton v. Fairbury Water-Works Co.

the fire commenced and before it had done any damage or extended to the premises then occupied by appellant, hosepipes in good order were attached to the two private hydrants and carried to within five or six feet of the fire for the purpose of applying water to it."

Following this language there was a condensed statement of the several matters constituting the alleged negligence of the supply company in making proper provisions to extinguish the fire, by reason of all which failures recited in the petition the fire was not put out, but was suffered to inflict great loss upon appellant by the destruction of its property. Commenting upon the averments of the petition, the court proceeded thus: "Clearly appellant had a right to sue for a breach of the distinct contract set out in the petition, by which, in consideration of rent paid for the use of the two hydrants on its own lot, water was agreed to be furnished directly to it by appellee."

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It will thus be seen that this private contract largely influenced the court in its determination that the demurrer had been improperly sustained to the petition. As to the right to maintain an action as upon the promise of the supply company to the city of Paducah for the benefit of the lumber company, the opinion of the court runs as follows, after an epitomized statement of the undertakings of the water supply company, to-wit, "That appellee also agreed to have in the stand-pipe at all times a supply of water sufficient to afford a head or pressure requisite for all domestic, manufacturing, and fire protection purposes for all the inhabitants and property of the city, and to increase the number and length of hydrants and pipes when necessary to meet demands of the city and citizens; that said contract was made with appellee by the city of Paducah for the use and benefit of all its property owners and inhabitants, and appellant's property was from 1885 until destroyed by fire, in common with that of others, taxed at its full value to raise money with which to pay said hydrant rents."

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