28 South. 877; Metropolitan Trust Co. v. Topeka Water Co. (lately decided at Kansas City by Judge Pollock, United States District Judge), 132 Fed. 702. Those holding the contrary view are the following: Paducah Lumber Co. v. Paducah Water Co., 89 Ky. 340, 25 Am. St. Rep. 536, 12 S. W. 554, 13 S. W. 249, 7 L. R. A. 77; Duncan v. Owensboro Water Co., 12 Ky. Law Rep. 824, 15 S. W. 523; Graves Co. Water Co. v. Ligon, 112 Ky. 775, 66 S. W. 725; Gorrell v. Greensboro Water Supply Co., 124 N. C. 328, 70 Am. St. Rep. 598, 32 S. E. 720, 46 L. R. A. 513. These opposing decisions have been virtually criticised in the foregoing pages. They are based upon the supposed agency of the 1113 municipality, and upon the fact of the contract having been entered into for the benefit of the inhabitants. Further analysis or discussion of them would serve no useful purpose. Criticism of them will be found in the following cases hereinabove cited: Mott v. Manufacturing Co., 48 Kan. 12, 30 Am. St. Rep. 267, 28 Pac. 989, 15 L. R. A. 375; Britton v. Waterworks Co., 81 Wis. 48, 29 Am. St. Rep. 856, 51 N. W. 84; Fitch v. Water Co., 139 Ind. 214, 47 Am. St. Rep. 258, 37 N. E. 982; Howsman v. Water Co., 119 Mo. 304, 41 Am. St. Rep. 654, 24 S. W. 784, 23 L. R. A. 146; House v. Waterworks Co., 88 Tex. 233, 31 S. W. 179, 28 L. R. A. 532; Waterworks Co. v. Brownless, 10 Ohio Cir. Ct. Rep. 620; Eaton v. Waterworks Co., 37 Neb. 546, 40 Am. St. Rep. 510, 56 N. W. 201, 21 L. R. A. 653; Bush v. Water Co., 4 Idaho, 618, 95 Am. St. Rep. 161; Boston etc. Co. v. Salem Water Co., 94 Fed. 238; Ukiah v. Ukiah Water Co., 142 Cal. 173, 100 Am. St. Rep. 107, 75 Pac. 773, 64 L. R. A. 231. In general terms, it may be said of them that they obliterate the line of demarcation between the corporators and corporation, identify the individual with the public, consecrate the anomaly of a commutative contract emancipated from mutuality of obligation, and finally impose by implication a liability which, if intended by the parties to be a part of their contract, would most indubitably have been made the subject of an express clause. Plaintiffs' learned counsel say that the majority decisions are based on the absence at common law of the stipulation pour autrui. It may be that the cases of Mott v. Cherryvale Water etc. Co., 48 Kan. 12, 30 Am. St. Rep. 267, 28 Pac. 989, 15 L. R. A. 375, Howsman v. Trenton Water Co., 119 Mo. 304, 41 Am. St. Rep. 654, 24 S. W. 784, 23 L. R. A. 146, Becker v. Keokuk Water Co., 79 Iowa, 419, 18 Am. St. Rep. 377, 44 N. W. 694, Bush v. Artesian Water Co., 4 Idaho, 618, 95 Am. St. Rep. 161, 43 Pac. 70, Fowler v. Athens 1114 Water Co., 83 Ga. 219, 20 Am. St. Rep. 313, 9 S. E. 673, Foster v. Lookout Water Co., 3 Lea (Tenn.), 42, and Atkinson v. Newcastle Water Co., L. R. 2 Ex. 441, may to some extent be distinguished on that score, but not the others. In the very case of Gorrell v. Greensboro Water Supply Co., upon which the learned counsel mostly rely, the court said: "One not a party or privy to a contract, but who is a beneficiary thereof, is entitled to maintain an action for its breach. This has been sustained by many decisions elsewhere. And even when the beneficiary is only one of a class of persons, if the class is sufficiently designated." See, also, 7 American and English Encyclopedia of Law, page 106: "The doctrine that a third person for whose benefit a contract is made may sue upon it is adopted in most of the United States, and is frequently referred to, therefore, as the 'American doctrine." " It is well to note that this suit is distinctly ex contractu, upon the contract of the city with the defendant company, and not ex delicto, upon the breach of any general duty to society, or any duty specially imposed by statute. To the failure to observe that important distinction the error into which the court fell in the City of Monroe case is in great part attributable. The judgment appealed from is set aside and the suit of plaintiffs is dismissed, at their costs. Land, J., recused, having sat in the case below. If a Municipal Corporation Contracts with a water company to furnish water to be used to extinguish fires, the company is not liable, according to some authorities, at the suit of a taxpayer whose property is destroyed by fire by reason of the company's failure to supply sufficient water to the municipality for that purpose: Ukiah v. Ukiah Water etc. Co., 142 Cal. 173, 100 Am. St. Rep. 107; Bush v. Artesian etc. Water Co., 4 Idaho, 618, 95 Am. St. Rep. 161; Blunk v. Dennison Co., 71 Ohio St. 250. Other authorities, although they probably are in the minority, take a different view: See the monographic note to Baxter v. Camp, 71 Am. St. Rep. 196, 197. CASES IN THE SUPREME JUDICIAL COURT OF MASSACHUSETTS. CADIGAN v. CRABTREE. BROKER, When not Entitled to Commissions.-If a broker is employed to secure a tenant of property, the terms to be approved by the owner, and the broker procures an offer which the owner rejects, and subsequently, in good faith, revokes the authority of the broker and terminates his employment, the fact that the owner afterward changes her mind and effects a lease with the person first proposed by the broker does not entitle him to commissions on the lease made after his employment had ceased. (p. 549.) E. Paul, for the defendant. S. L. Whipple and W. R. Sears, for the plaintiff. 8 HAMMOND, J. This is an action by a real estate broker to recover a commission upon a lease. So far as material to the question before us, the evidence for the plaintiff, taken in the light most favorable to him, tended to show the following facts: About November 1, 1898, the defendant employed the plaintiff to procure a tenant for certain real estate owned by her. He saw several persons on the matter, among whom were one Gould and one Mann. With the latter negotiations were soon begun which finally resulted in an agreement as to terms, and in the preparation of some papers. The Mann lease, however, "fell through" on December 20, 1898, because the person who was to become the surety for the tenant changed his mind and withdrew. Directly after this the plaintiff renewed his negotiations with Gould and within a day or two told the defendant that he thought he could get a good tenant, mentioning Gould, whom he said he would "see right away," v. Keokuk Water Co., 79 Iowa, 419, 18 Am. St. Rep. 377, 44 N. W. 694, Bush v. Artesian Water Co., 4 Idaho, 618, 95 Am. St. Rep. 161, 43 Pac. 70, Fowler v. Athens 1114 Water Co., 83 Ga. 219, 20 Am. St. Rep. 313, 9 S. E. 673, Foster v. Lookout Water Co., 3 Lea (Tenn.), 42, and Atkinson v. Newcastle Water Co., L. R. 2 Ex. 441, may to some extent be distinguished on that score, but not the others. In the very case of Gorrell v. Greensboro Water Supply Co., upon which the learned counsel mostly rely, the court said: "One not a party or privy to a contract, but who is a beneficiary thereof, is entitled to maintain an action for its breach. This has been sustained by many decisions elsewhere. And even when the beneficiary is only one of a class of persons, if the class is sufficiently designated." See, also, 7 American and English Encyclopedia of Law, page 106: "The doctrine that a third person for whose benefit a contract is made may sue upon it is adopted in most of the United States, and is frequently referred to, therefore, as the 'American doctrine.'' It is well to note that this suit is distinctly ex contractu, upon the contract of the city with the defendant company, and not ex delicto, upon the breach of any general duty to society, or any duty specially imposed by statute. To the failure to observe that important distinction the error into which the court fell in the City of Monroe case is in great part attributable. The judgment appealed from is set aside and the suit of plaintiffs is dismissed, at their costs. Land, J., recused, having sat in the case below. If a Municipal Corporation Contracts with a water company to furnish water to be used to extinguish fires, the company is not liable, according to some authorities, at the suit of a taxpayer whose property is destroyed by fire by reason of the company's failure to supply sufficient water to the municipality for that purpose: Ukiah v. Ukiah Water etc. Co., 142 Cal. 173, 100 Am. St. Rep. 107; Bush v. Artesian etc. Water Co., 4 Idaho, 618, 95 Am. St. Rep. 161; Blunk v. Dennison Co., 71 Ohio St. 250. Other authorities, although they probably are in the minority, take a different view: See the monographic note to Baxter v. Camp, 71 Am. St. Rep. 196, 197. CASES IN THE SUPREME JUDICIAL COURT OF MASSACHUSETTS. CADIGAN v. CRABTREE. BROKER, When not Entitled to Commissions.—If a broker is employed to secure a tenant of property, the terms to be approved by the owner, and the broker procures an offer which the owner rejects, and subsequently, in good faith, revokes the authority of the broker and terminates his employment, the fact that the owner afterward changes her mind and effects a lease with the person first proposed by the broker does not entitle him to commissions on the lease made after his employment had ceased. (p. 549.) E. Paul, for the defendant. S. L. Whipple and W. R. Sears, for the plaintiff. 8 HAMMOND, J. This is an action by a real estate broker to recover a commission upon a lease. So far as material to the question before us, the evidence for the plaintiff, taken in the light most favorable to him, tended to show the following facts: About November 1, 1898, the defendant employed the plaintiff to procure a tenant for certain real estate owned by her. He saw several persons on the matter, among whom were one Gould and one Mann. With the latter negotiations were soon begun which finally resulted in an agreement as to terms, and in the preparation of some papers. The Mann lease, however, "fell through" on December 20, 1898, because the person who was to become the surety for the tenant changed his mind and withdrew. Directly after this the plaintiff renewed his negotiations with Gould and within a day or two told the defendant that he thought he could get a good tenant, mentioning Gould, whom he said he would "see right away," |