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habitants individually. The inhabitants could neither demand its performance, nor demand the nullity of the contract because of its nonperformance. They could not pay any part of its consideration, for it is futile to say that payments made by the city out of her treasury are payments made by the inhabitants individually.

Though the stipulation is thus made by the city distinctly in her own favor, in the interest of one of the branches of her administration, and though the engagement is thus distinctly to the city for supplying her fire department with water, nevertheless plaintiffs contend that the stipulation is made in favor of the inhabitants individually, and that the engagement of the defendant company is to the inhabitants individually. All we can say is that the contention is in the teeth of the plain terms of the contract.

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Counsel place much reliance upon the recital that the hydrants are said to be rented "in consideration of the public benefit and the protection to property resulting from the construction of said system of waterworks"; but the public benefit and the protection to property is necessarily the consideration of every contract entered into by the city in the interest of her fire department. The fire department itself has no other raison d'être. We fail entirely to see what comfort plaintiffs can derive from that recital. Counsel say the property to be protected was that of the inhabitants. As a matter of course, it was. It was all the property within the corporate limits, public and private. But from the fact that the water was intended to be used by the city for the protection of the property of the inhabitants, it does not follow that the stipulation was intended to be in their favor individually, and to confer upon them a right of action. The contracts of the city with the firemen, by which the latter are to furnish their services in case of fire, are entered into for the public benefit and the protection of property; but these contracts are not stipulations pour autrui in favor of the inhabitants individually, and the latter have no action thereon. The municipal corporation is nothing more than a fictitious being created for the purpose of administering the affairs of the public, and necessarily all its contracts are for "the public benefit"; but it does not follow that they are all stipulations pour autrui in favor of the inhabitants individually, and that the latter may bring suit thereon.

By keeping well in mind the separateness between the juridical being, the corporation, and the inhabitants, its corporators,

we can see very clearly that the engagement of the defendant company to furnish water for the extinguishment of fires is distinctly to the city, and that the only connection the inhabitants have there with is that the city is to use the water to protect their property, and that in that way they have an interest in the performance of the contract. But as said by the court of cassation, supra, "we must not conclude that every clause susceptible of procuring advantages to a third person brings into existence in favor of the latter a right of action." The materials and labor contracted for by the builder who is constructing a house for me under contract are intended to be used on my house for my benefit, but the contracts for this labor and these materials are not for 1108 that reason my contracts, and I have not an action thereon.

The essential point must always be as to whether there was the intention to confer a right of action. Counsel say that it was "not only the right, but the duty, of the corporation, in making such a contract, to embody provisions for the benefit of the inhabitants." If by this is meant that it was the duty of the city to see to it that the defendant company should be obligated to furnish water to the inhabitants individually, when so required, at a fixed maximum rate, for private use, including individual fire protection, we say the city has done that very thing. But if it is meant that it was the duty of the city to impose upon the defendant company the liability which the plaintiffs are here contending for, we answer emphatically that it was not. If the city herself owned the waterworks, she would not be under any such liability: Authorities cited at page 1248 of 52 La. Ann., and page 686, 27 South., in case of Planters' Oil Mill v. Monroe Waterworks Company; also 20 Am. & Eng. Ency. of Law, p. 1197. Why, then, should it be her duty to impose it upon the contractor stepping into her shoes for discharging her function of supplying her fire department with water?

Perhaps, if the city found a contractor so benevolent or simple as to be willing to assume such a liability without exacting additional pay for doing so, it might be her duty to take advantage of the situation and impose such a liability; but where would she find a contractor of that type? It goes without saying that no contractor would expose himself to a lawsuit in the wake of every fire, without exacting pay for so doing. And the pay would have to be very heavy, for the experience of every day

teaches that the negligence of employés cannot be entirely guarded against, and at any moment, under such a liability, heavy damages might have to be paid. In fact, a general conflagration, 1109 resulting from the negligence of an employé, might utterly bankrupt the contractor. It is entirely improbable that the city of Shreveport would have been willing to impose so heavy a burden upon her treasury.

... •

Not only it was not the duty of the city to stipulate such a liability, but she was without authority to do it. She was authorized by her charter "to pass such by-laws and ordinances as are necessary and proper . to provide the means and make regulation for preventing and extinguishing conflagrations," but she was not authorized to indemnify the inhabitants against any losses that might result from a negligent fire service. And what she could not do directly she could do indirectly. It not being permitted her to assume such a liability, she could not hire some one else to assume it in her place: Becker v. Keokuk Waterworks Co., 79 Iowa, 419, 18 Am. St. Rep. 377, 44 N. W. 694; Mott v. Cherryvale etc. Mfg. Co., 48 Kan. 12, 30 Am. St. Rep. 267, 28 Pac. 989, 15 L. R. A. 375; House v. Houston Waterworks Co., 88 Tex. 233, 31 S. W. 179, 28 L. R. A. 532.

In fact, it may not be so certain that the power of taxation, which can be exercised only for a public purpose, may be exercised for the purpose of paying indemnities to private individuals for the failure of the city to discharge one of her governmental functions. That this matter of extinguishing of fires is a governmental function is well settled: Authorities cited in case of Planters' Oil Mill v. Monroe, 52 La. Ann. 1248, 27 South. 684. Of course, the function is not the less governmental if the city, instead of discharging it herself, hires some one else to do it; and, plainly, if the city cannot use the money derived from public taxation to pay those indemnities to private individuals, she cannot use it to hire some one to assume in her place and stead the risk of having to pay them. Under such an arrangement the indemnities would in the end come out of the public treasury, for the assumption of 1110 the liability would have to be paid for, and the amount of the payment would have to be the equivalent of the risk. Plus, indeed, a margin of profit.

Lastly, counsel say that, if they cannot bring suit for the alleged breach of contract, no one can-for the city cannotand the contract is without a sanction. The answer is that the

sanction of this contract is found in the right of the city to enforce specific performance or to demand the nullity of the contract, and not in a suit in damages by persons not privy thereto. There is nothing anomalous or strange in the circumstance of there being losses resulting from a breach of contract, and yet no right of action in anybody's favor. Cases of that kind occur every day. To use again the illustration of a contract with a water company to protect from fire my neighbor's house, which is so close to mine as to endanger mine-in such a case neither my neighbor nor I can sue on the breach of the contract; he, because he was not a party; I, because I have suffered no loss. It makes no difference how direct and immediate the interest is. Thus in Loeber v. New Orleans etc. R. R. Co., 41 La. Ann. 1151, 5 South. 60, the defendant street railroad company had agreed with the city, as part of the consideration of its franchise, to pave the street upon which the property of the plaintiff abutted, and had failed to do so, and the plaintiff brought suit to enforce performance of the contract. The court found that the contract did not contain a stipulation pour autrui. Said the court: "Undoubtedly the stipulation of the contract sought to be enforced was consented to in the interest and for the benefit of the inhabitants of the city, but it does not follow that, if the corporation fails to enforce it, the taxpayer may."

In Barber Asphalt Co. v. New Orleans etc. Ry. Co., 49 La. Ann. 1608, 22 South. 955-another suit upon the same contract-the court held: "The owners of property fronting on the parts of the street covered by the ordinance would 1111 have had no shadow of right to control the action of the corporate authorities in this matter, and insist that the ordinance was irrepealable, inasmuch as by such repeal their interest would be seriously affected and injured by a repeal."

In Oliff v. City of Shreveport, 52 La. Ann. 1204, 27 South. 688, a bridge had been built in pursuance of a contract between the city of Shreveport and a railroad company, according to which the surplus earnings of the bridge in any one year should be applied toward reducing the rate of the tolls for the ensuing year. Citizens using this bridge, and having to pay the tolls, brought suit to enforce that stipulation of the contract. Held, that they had no right of action.

The sender of a letter or package through the mails does not have an action against the contractor for a breach of his contract with the government for carrying the mails: German State

Bank v. Minneapolis R. R. (C. C.), 113 Fed. 414; Boston Ins. Co. v. Chicago etc. R. R. Co., 118 Iowa, 423, 92 N. W. 88, 59 L. R. A. 796.

We conclude that the engagement of the defendant company to the city of Shreveport to furnish water to her for the use of her fire department was not a stipulation pour autrui.

We have discussed the case thus far as if the question it involves were res nova; but the exact question has been decided repeatedly in other jurisdictions, and once already by this court. Upon the latter decision-Planters' Oil Mill v. Monroe, 52 La. Ann. 1243, 27 South. 684-the plaintiffs place much reliance. But for the reasons hereinabove given, we are not satisfied with the conclusion there reached, and we have concluded to overrule it. By so doing we take this court from among a slender minority, and range it among the very large majority of the courts of the country which have had occasion to consider this question.

The decisions holding as we now do are the following: State Trust Co. v. City of Duluth, 70 Minn. 257, 73 N. W. 249; Boston Safe Deposit etc. Co. v. Salem Water 1112 Co. (C. C.), 94 Fed. 238; Davis v. Waterworks Co., 54 Iowa, 59, 37 Am. Rep. 185, 6 N. W. 126; Becker v. Waterworks Co., 79 Iowa, 419, 18 Am. St. Rep. 377, 44 N. W. 694; Britton v. Waterworks Co., 81 Wis. 48, 29 Am. St. Rep. 856, 51 N. W. 84; Hayes v. City of Oshkosh, 33 Wis. 314, 14 Am. Rep. 760; Nickerson v. Hydraulic Co., 46 Conn. 24, 33 Am. Rep. 1; Eaton v. Waterworks Co., 37 Neb. 546, 40 Am. St. Rep. 510, 56 N. W. 201, 21 L. R. A. 653; Beck v. Water Co. (Pa.), 11 Atl. 300; Stone v. Water Co., 4 Pa. Dist. Rep. 431; Phoenix Ins. Co. v. Trenton Water Co., 42 Mo. App. 118; Howsman v. Water Co., 119 Mo. 304, 41 Am. St. Rep. 654, 24 S. W. 784, 23 L. R. A. 146; Fitch v. Seymour Water Co., 139 Ind. 214, 47 Am. St. Rep. 258, 37 N. E. 982; Foster v. Water Co., 3 Lea, 42; Ferris v. Water Co., 16 Nev. 44, 40 Am. Rep. 485; Fowler v. Water Co., 83 Ga. 219, 20 Am. St. Rep. 313, 9 S. E. 673; Mott v. Manufacturing Co., 48 Kan. 12, 30 Am. St. Rep. 267, 28 Pac. 989, 15 L. R. A. 375; Bush v. Water Co., 4 Idaho, 618, 95 Am. St. Rep. 161, 43 Pac. 69; Wainwright v. Water Co., 78 Kan. 146, 28 N. Y. Supp. 987; House v. Waterworks Co., 88 Tex. 233, 31 S. W. 179, 28 L. R. A. 532; Waterworks Co. v. Brownless, 10 Ohio C. C. 620; Town of Ukiah v. Ukiah Water etc. Co., 142 Cal. 173, 100 Am. St. Rep. 107, 75 Pac. 773, 64 L. R. A. 231; Wilkinson v. Heat, Light etc. Co., 78 Miss. 389,

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