NOTES OF RECENT CASES may contract to furnish water for fire protection, may lay mains through the public streets, have a complete monopoly upon that most profitable privi lege, and yet it can nevertheless wholly neglect to furnish water in any adequate amounts or at any adequate pressure for purposes of fire protection, and yet there is no person on earth that can compel it by legal action to pay for the damage which re sulted from its neglect. It is entirely unsatisfac tory to call this a mere non-feasance or a mere fail ure to perform a contract, for it is not the case where the water company never began supplying water under its contract, but is rather the case of undertaking a work and then carrying it out in a negligent manner. As the court well said in Olm sted v. Morris Aqueduct Co., 46 N. J. L. 459, "It is well known that when a company undertakes to supply a town with water the ordinary methods to obtain water to extinguish fires are abandoned by the people, and under the circumstances it would be gross negligence in the company to permit the supply of water to be intermitted or diminished to any considerable extent, and thus endanger the property within the town." That is the real situa tion in these cases. And if it can be shown as a fact that the fire could have been surely extin guished with a stream of the usual volume and pressure for fire purposes, then the water company that agreed to furnish it and has actually begun the work of doing so should pay the damages resulting from the negligent manner in which it maintained that supply and allowed the quantity or pressure to be reduced below the proper standard. (See note by Judge Freeman to Britton v. Green Bay, etc., W. W. Co., 29 Am. St. Rep. 863, suggesting the need of legislation in view of the decisions of the great majority of courts in these cases. ) The principal case is well supported by the opin ion of Mr. Justice Brewer in the case cited from the United States Supreme Court, and we believe it is sound in reason and just in result. F. T. C. Where the greatest latitude is allowed a person who is not a party to a contract to sue upon it as a beneficiary, there is still the fundamental condition that the plaintiff must be a direct bene ficiary as distinguished from one who is merely collaterally or incidentally benefited. (Per Baker, J., in Crandall v. Payne, 154 Ill. 627, 39 N. E. 601.) The test of who is a direct beneficiary and who is not is this: Is the promised performance to be exe cuted directly to the third party? If it be the pay ment of the promisee's debt, as in Lawrence v. Fox (20 N.Y. 268), is the money to be handed over to the third party directly? If not, then the third party is not a beneficiary and cannot sue upon any theory. Thus, if the promise is to put money into
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the promisee's hands, with which he is to pay his debts, the creditor cannot sue (Burton v. Larkin, 36 Kan. 246, 13 P. 398; Thomas v. Prather, 65 Ark. 27, 44 S. W. 218); or if the promise is to pay the promisee $1,000, conditioned, however, to be void if the promisor pays the promisee's debt to a third party, the creditor cannot sue. (Turk v. Ridge, 41 N. Y. 201; Simson v. Brown, 68 N. Y. 355.) Simi larly, if a railway company contract with levee com missioners to so build an embankment on its right of way as to establish a dam which would keep the water off of the land of property owners in the dis trict, and to complete the work by a certain time, it will not be liable in contract to the property owners of the levee district who are damaged by the failure to complete the work within the time specified. (Rodhouse v. C. & A. Ry. Co., 219 Ill. 596. 76 N. E. 836O The same principle is fundamental in the law of torts. The law creates a mandate to act or re frain from acting (the breach of which is a tort), not in favor of everyone who may be damaged as the natural and probable consequence of the breach of such mandate, but only in favor of some single individual or limited class of individuals to whom the performance directly and physically runs, or who are the immediate recipients of the benefits of refraining from acting. Thus if the negligence of A caused the death of B while both were driving upon the highway, A's wife and children, who were dependent upon him, would have, apart from stat ute, no cause of action for damages. There was a mandate to use due care toward A alone. All others, no matter how obvious, or how great finan cially, their interest may be in the performance of that duty, are merely incidentally or collaterally benefited by its performance. Similarly, a railway company which contracted with levee commis sioners to so build an embankment on its right of way that it would operate as a dam to keep the water off of the land of property owners in the dis trict, and to complete the work by a certain time, was declared not to be liable in tort to a property owner damaged by the failure to perform its con tract within the time specified. (Rodhouse v. C. & A. Ry. Co., 219 Ill. 596. 76 N. E. 836.) Obviously, the application of the general principle founded upon this distinction is not affected by the fact that the mandate to use due care in the doing or re fraining from doing certain acts with reference to B, is upon a public service corporation in the furnishing of the public service in which it is engaged. In the case put where A's negligence caused the death of B, it would have made no difference that A was a public service corporation and B a passenger. The public policy in favor of this general princi ple, applicable alike to any contractual or other
