A public service corporation frequently enters into a contract with a municipality for the performance of acts in which individual members of the municipality are interested and when a breach of the contract inflicts injury on such an individual the question arises whether he may maintain an action or whether the right is solely in the municipality. Three situations may be distinguished here: (1) The public service corporation undertakes contractually to perform duties which would, in any event, attach to it by virtue of its public profession, though perhaps the extent of the duty would not be exactly defined except for the contract; (2) The performance undertaken is not a duty imposed by law upon the corporation or upon the municipality, but finds its only reason for existence in the contract with the municipality. (3) The municipality is under a legal duty to the public to perform the acts which the corporation undertakes on its behalf. In the first case the corporation is liable to a member of the public for violation of the duty.1 A common carrier is bound on payment of a reasonable charge to perform its functions to every member of the public who may make application. What is a reasonable charge may depend upon the terms upon which a franchise was granted and accepted or upon the provisions of a contract with a municipality. If a water company owes a public duty to maintain its service or to maintain a certain pressure of water, a violation of that duty entitles an individual injured thereby to recover appropriate damages.2 So a water company3 or a gas company 4 or a telephone company which receives a franchise upon a contract to give service at certain prices, comes under a duty to each individual of the community to furnish service at that price.5 A street railway company under authority of law has in many instances contracted with a municipality to carry passengers for a five cent fare. A member of the public who is aggrieved by breach of such a contract may sue the railway company; 6 but his right is based on the duty imposed by law to carry for a reasonable charge which under the circumstances is five cents. The importance of recognizing that the plaintiff's right is not contractual has been pointed out.7 If the right were contractual "the rate of fare could not be raised without the consent of every one who rode on the street cars, and the city would have no legal right to consent to modify the terms of the agreement."
99 See Guaranty Co. v. Pressed Brick Co., 191 U.S.416, 427, 48 L. Ed. 242, 24 Sup. Ct. 142; Hill v. American Surety Co., 200 U. S. 197, 50 L. Ed. 437, 26 S. Ct. 16S; Mankin v. Ludowici-Celadon Co., 215 U. S. 533, 54 L. Ed.
315, 30 S. Ct. 174; United States Fidelity Co. v. Bartlett, 231 U. S. 237, 58 L. Ed. 200, 34 S. Ct. 88. 1 See Wynmn Pub. Serv. Corp.,
3 Pond v. New Rochelle Water Co., 183 N. Y. 330, 76 N. E. 211,1 L. R. A. (N. S.) 958.
4 Farnsworth v. Boro Oil & Gas Co., 216 N. Y. 40, 109 N. E. 860.
Sec. 373. Contracts for the sole benefit of inhabitants of a community. The preceding section indicates that a contract with a municipality for a performance of public advantage can rarely be regarded as made for the sole benefit of the individual inhabitants, any more than the contracts of a private corporation can be regarded as made for the sole benefit of the individual stockholders; 8 though it need not be denied that if it is clearly
200 U. S. 57, 26 8. Ct. 186, SO L. Ed. 367; Mugge v. Tampa Water Works Co., 52 Fla. 371, 42 So. 81, 6 L. R, A. (N. S.) 1171. In these decisions it is clearly stated that the plaintiff's right of recovery for loss of his property by fire through the failure of the supply of water which the water company had contracted to maintain was based on the company's public duty and the action was ex delicto. Cf. German Alliance Ins. Co. v. Home Water Supply Co., 226 U.S. 220, 33 S. Ct. 32, 57 L. Ed. 195, 42 L. R. A. (N. S.) 1000; House v. Houston Waterworks Co., 88 Tex. 233, 31 S. W. 179, 28 L. R. A. 532. 5 Lutea p. Fayette Home Telephone
Co., 155 Ky. 555, 160 S. W. 179; Rochester Telephone Co. v. Ross, 105 N. Y. 429, 88 N. E. 793.
6 Adams v. Union R. Co., 21 R. I. 134, 42 Atl. 515, 44 L. R. A. 273.
7 International Ry. Co. v. Raan, 224 N. Y. 83, 120 N. E. 153.
8In International Ry. Co. v. Rann, 224 N. Y. 83, Pound, J., said, speaking of an agreement by a railway company with the city of Buffalo to charge only five cents for fare:
"The agreement confers rights upon the city of Buffalo. The city may terminate it for non-performance or it may release the railroad companies from performance or consent to modify its terms, or it may compel performintended to create rights in the individuals rather than in the community as a whole the intent will be given effect.9 The commonest illustration of the foregoing principles arises where a water company contracts to furnish water sufficient to supply the hydrants of a town or district, and the failure of the water company to keep its promise to the town results in the destruction of a building by a fire which might have been extinguished but for the lack of water, or in other damage. The injured individual is not generally allowed to sue on such a promise. Though the town or district which is the promisee, not being itself liable for the lack of water or for the destruction of the building, has no pecuniary interest in the performance of the promise, yet it may be doubted whether the stipulation was exacted for the benefit of such people as might have their buildings destroyed from lack of water. It is a more reasonable construction that the object of the promise is to benefit the community as a whole, and that the city as the representative of the community is the proper plaintiff. In fact, the plaintiff is not usually allowed to recover.10 ance by suit. Washington County Water Co. v. Hagerstown, 116 Md. 497, 82 Atl. 826. The city is the real party to the agreement. The individual inhabitants are not, nor can they become, parties thereto. They merely have the benefit of it while it remains in force. The rule as to private contracts which permits the third party for whose benefit it is made to become a party thereto, Gifford v. Corrigan, 117 N. Y. 257,22 N. E. 766, 6 L. R. A. 610, can have no application to contracts like this which ore primarily municipal regulations. little Rock R. & E. Co. v. DowelL 101 Ark. 223, 142 S. W. 165, Ann. Cas. 1913 D. 1086.
9See Adams v. Union R. Co., 21 R. I. 134, 139, 42 Atl. 515, 44 L. R. A. 273; Jenkins v. Chesapeake etc. R. Co., 61 W. Va.. 597, 57 S. E. 48, 49 L. R. A. (N. 8.) 1166.
10 German Alliance Ins. Co. v. Home Water Co., 226 U. S. 220, 33 S. Ct. 32, 57 L. Ed. 195, 42 L. R. A. (N. S.)
1000; Boston Safe Deposit Co. v. Salem Water Co., 94 Fed. 238, 240; Lovejoy v. Bessemer Waterworks Co., 146 Ala. 374, 41 So. 76, 6 L. R. A. (N. S.) 429; Ukiah County v. Ukiah Water Co., 142 Cal. 173, 75 Pac 773, 64 L. R. A. 231, 100 Am. St. Rep. 107; Nickereon v. Bridgeport Hydraulic Co., 46 Conn. 24, 33 Am. Rep. 1; Fowler v. Water Co., 83 Ga. 219, 9 S. E. 673, 20 Am. St. Rep. 313; Bush v. Artesian Water Co., 4 Idaho, 618, 43 Pac. 69, 95 Am. St. Rep. 161; Fitch v. Seymour Water Co., 139 Ind. 214, 37 N. E. 982,47 Am. St. Rep. 258; Davis v. Water Works, 54 Ia. 59, 6 N. W. 126, 37 Am. Rep. 185; Becker v. Keokup Water Works, 79 Ia. 419, 44 N. W. 694, 18 Am. St. Rep. 377; Mott v. Cherryvale Water Co., 48 Kans. 12, 28 Pac. 989,15 L. R. A. 375, 30 Am. St. Rep. 267; Hone v. Presque Isle Water Co., 104 Me. 217, 71 Atl. 769, 21 L. R. A. (N. S.) 1021; Wilkinson v. Light, Heat & Water Co., 78