said loss and damage was the wrongful neg- that in the English case of Hadley v. Baxenlect of duty of said defendant." dale, supra. But it is suggested, in behalf of the defendant, that the corporation does not agree to extinguish fires, or to insure property against loss by fire; that its agreement is simply to furnish a water system; that it is impossible to say that failure to furnish water was the proximate cause of the loss; and that damages can only be such as were in contemplation at the time the contract was made. But the defendant's only undertaking was to carry a package of money. See, also, Frye v. Maine C. R. R. Co., 67 Me. 414, and McPheters v. Moose River Log Driving Co., 78 Me. 329, 5 Atl. 270. Equally pertinent illustrations are readily found in our own state. In Grindle v. Eastern Express Company, 67 Me. 317, 24 Am. Rep. 31, the plaintiff's intestate delivered $24.90 to the defendant express company, at Castine, to be sent to Belfast to pay a premium on his life policy, which by its terms would lapse in eight days if the premium was not paid. It was held that for failure to deliver the money according to its underThat the defendant did not agree to ex- taking the defendant was liable for the net tinguish fires or to insure property against value of the policy on the day it lapsed, on fire is unquestioned. The statement is true, the ground that both parties must be prebut the argument is fallacious. The conclu-sumed to have contemplated such damages sion, which is evidently sought to be deduced, from a knowledge of the circumstances. that the defendant is not liable for the damages resulting solely from a breach of its contract to furnish water to extinguish fires does not necessarily follow. A corresponding statement directing attention to the particular thing which the defendant agreed to do, Further apposite illustrations are found or not to do, could with equal propriety be in numerous cases involving facts more closemade respecting every cause of indirect dam-ly analogous to those at bar. In Watson v. ages. This method of reasoning obviously Inhabitants of Needham, 161 Mass. 404, 37 excludes from consideration the distinctive N. E. 204, 24 L. R. A. 287, the defendant character of consequential damages for the town, acting through its water commissionbreach of a contract, and hence affords no ers, undertook to furnish the plaintiff with aid in determining the question of liability. water for use in a boiler to generate steam In the leading English case of Hadley v. to heat his greenhouse, but omitted to use Baxendale, 9 Exch. 353, so often cited as au- proper diligence to discover a leak in the thority in this country, the plaintiffs gave the main pipe, and the plaintiff failed to receive broken shaft of their mill to the defendant a sufficient supply of water, whereby his carrier to be forwarded immediately to an plants were damaged by freezing to the exengineer, to serve as a model for a new one. tent of $400. Here the defendant had not The delivery was delayed, and the mill re- contracted to heat the plaintiff's greenhouse, mained idle for want of the new shaft. The or to insure his plants against freezing. It plaintiffs claimed damages for loss of profits had only contracted to furnish water to make while the mill was idle. The carrier only steam. But the court held that subject to undertook to deliver the broken shaft im- the right to shut off the water when necesmediately. He did not contract to provide a sary to make extensions and repairs, which new shaft, or to furnish business for the had been expressly reserved, "the town was mill. But the familiar rule was then enun- bound to use reasonable care and diligence ciated "that when two parties have made a to have ready for delivery a sufficient supcontract which one of them has broken, the ply of water for the plaintiff's use so long damages which the other party ought to re- as the contract remained in force." The ceive in respect of such breach of contract plaintiff was accordingly allowed to recover should be either such as may fairly and sub- the full amount of his damage by freezing. stantially be considered as arising naturally- In Stock v. Boston, 149 Mass. 410, 21 N. i. e., according to the usual course of things E. 871, 14 Am. St. Rep. 430, a similar confrom such breach of contract itself, or such tract existed between the parties, and the as may reasonably be supposed to have been plaintiff sustained damage by the freezing of in the contemplation of both parties at the his plants, caused by the neglect of the detime they made the contract-as the probable fendant to furnish water according to the result of the breach of it. So in what has contract. It was contended in behalf of the been termed "the leading American case" of defendant that the damage was too remote, Griffin v. Colver, 16 N. Y. 489, 69 Am. Dec. but the court said that the defendant was 718, it was held that the plaintiff was enti- "liable not only for those injuries which are tled to damages for the loss of the ordinary caused directly and immediately by his act, rental of his mill, resulting from the breach but also for such consequential injuries as, of the defendants' contract to deliver a steam according to the common experience of men, engine built for the purpose of running the are likely to result from his act. * * mill. But the defendant did not contract to The true inquiry is whether the injury susrun the mill, or to supply business for it. He tained was such as, according to common only agreed to deliver a steam engine to fur-experience and the usual course of events, nish power for it. The statement of the rule might reasonably be anticipated." See, also, Mass. 277, 12 Am. Rep. 689; Hand v. In- contract the water company was liable for habitants of Brookline, 126 Mass. 324. the damages sustained by the consumer from The same doctrine is exemplified in New fire, in consequence of a failure in the water Orleans & N. E. R. Co. v. Meridian Water- pressure, though the failure was due to a works Co., 72 Fed. 227, 18 C. C. A. 519. This break in its pipes, without the water comcase is precisely analogous to the case at pany's fault. In the opinion the court say, bar, being distinguishable only by the fact inter alia: "The principle underlying all that the plaintiff in this case is a railroad these cases is that where the contract is excompany instead of a municipal corporation. press, as it is in this case, to furnish water In the federal case the water company, in with a pressure sufficient for fire purposes consideration of $1,200 per year, contracted to do a thing not unlawful, the contractor to furnish the tanks and shops of the rail- must perform it; and if, by some unforeroad company with a full and sufficient sup- seen accident the performance is prevented, ply of water, "not less than 60 pounds pres- he must pay damages for not doing it. No sure for all purposes for which water may distinction is made between accidents that be needed or used at said shops," and as a could be foreseen when the contract was enpart of this agreement the defendant water tered into and those that could not have company laid its pipes to the plaintiff's prem- been foreseen. Where from the result of ises, and attached hydrants thereto to en- such an accident one of two innocent perable the plaintiff to run the water as a pro- sons must sustain a loss, the law casts it tection against fire, knowing that the rail-upon him who has agreed to sustain it, or road company had no other available source of water supply, and no other means of extinguishing fires on its premises; but it was alleged in the declaration that the plaintiff's shops and tanks were destroyed by fire in consequence of the defendant's failure to furnish water at 60 pounds pressure. It was held that upon these facts the plaintiff was entitled to recover. In the opinion the court say: "The breach of contract occurred when the defendant failed to furnish the plaintiff's servants with an adequate supply of water at not less than 60 pounds pressure. The plaintiff's declaration alleges that the proximate cause of its damages was not the fire, but was in the fact of the defendant's failure to fur-ligation of the defendant to perform its connish water at 60 pounds pressure. If such be the fact, the plaintiff's damages were not too remote or consequential to be sustained by the law applicable to the facts"-quoting in extenso the rule in Hadley v. Baxendale, 9 Exch. 341. * * rather leaves it where the agreement of the parties has put it, and will not insert for the benefit of one of the parties, by construction, an exception which the parties have, either by design or neglect, omitted to insert in their agreement." It will be perceived that in this action of contract the exercise of reasonable care and diligence by the water company was not made the criterion of its liability. In Skowhegan Water Company v. Skowhegan Village Corporation, 102 Me. 323, 66 Atl. 714, the competency of the parties to make a contract for a constant and ample supply of water "under sufficient pressure for the extinguishment of fires" and the ob tract were distinctly recognized. The water In Middlesex Water Company v. Knappman Whiting Co., 64 N. J. Law, 240, 45 Atl. 692, 49 L. R. A. 572, 81 Am. St. Rep. 467, the Supreme Court of New Jersey, on a claim for recoupment set up in an action of contract, rigidly enforced the obligations of the defendant's contract. In that case the water company, in consideration of $600 per year, agreed to furnish the plaintiff company with water "suitable for use in steam boilers, and with a pressure sufficient for fire purposes," but by reason of a leak in the water main, and the consequent failure of the company to furnish water according to the contract, the plaintiff's factory was destroyed by fire, causing damage to the extent of $20,000. In an action of contract by The case of Ukiah City v. Ukiah Water & the water company to recover the amount Imp. Co., 142 Cal. 173, 75 Pac. 773, 64 L. due for water supplied the plaintiff in error R. A. 231, 100 Am. St. Rep. 107, is cited by presented its claim for recoupment, based counsel for the defendant as a "case on all on the failure of the water company to per- fours" with the principal case, and as a diform its agreement to supply water of suffi-rect authority against the plaintiffs' contencient pressure for fire purposes, and it was tion. But, as already suggested, that case It was "Doubtless a water company may so bind itself by contract with a person to furnish him water for the extinguishment of fires as to render itself liable for the value of property of such person destroyed by fire, by reason of its failure to furnish him a sufficient supply of water. It may be assumed here that it is within the power of a municipality, as a property owner, to enter into such a contract with a water company, for the protection of the property which it owns, as a legal individual; but it certainly needs something more than evidence showing an accepted service for general fire purposes to establish such a contract, and the evidence here shows nothing more." It has been seen that in the written contract as set out in the plaintiffs' declaration in the case at bar, the defendant water company, in consideration of $800 per annum, did expressly agree to furnish water for 16 post hydrants which should have two nozzles each, and be supplied with pipes four inches in diameter, and that its works should be supplied with pumps of a capacity of 1,000,000 gallons per day. It also expressly "engaged" to furnish, through its pipes and hydrants, water of sufficient pressure and volume to extinguish fire within range of its hydrants, "and especially and particularly fires originating in, or communicated to, the plaintiffs' said building and property." But the plaintiffs allege that by reason of the deinstead of the pressure and volume specified, fendant's negligence these pipes and hydrants had become destitute of any current of water of sufficient pressure and volume to be of any utility in extinguishing fires, and that this negligence on the part of the defendant was the sole cause of the plaintiffs' loss and damage. distinguishable from it. In that case there, to plaintiff's property was only the same sewas no express contract, written or oral, be-curity which, in the exercise of its governtween the defendant water company and the mental functions, the plaintiff had obtained plaintiff town respecting the quantity of wa- for the whole town." ter to be furnished, or the manner and means of furnishing it. As stated by the court in the opinion, "the same relations existed between the town and the defendant, as to the furnishing of water for general fire purposes, as ordinarily exist between the private consumer and the water company as to water for domestic purposes." The water company had not agreed to supply the town with any definite number of hydrants, or specified the number of nozzles for the hydrants, the diameter of the pipes with which they should be supplied, or the manner in which the hydrants should be placed to afford protection against fire. It had not agreed that its works should be supplied by pumps of any stated capacity, or become bound to furnish, through its pipes and hydrants, water of "sufficient current, pressure, and volume to extinguish fire within the range of such hydrants," or made any special reference to "fires originating in, or communicated to," the property of the municipality. principally for want of a contract on the part of the defendant water company to do any specific thing that judgment was given for the defendant, After enumerating the many cases in different jurisdictions in which it has been held that a water company is not liable to individual owners of property destroyed by fire by reason of its failure to perform its contract to supply the town with sufficient water to extinguish fires, the opinion proceeds to show that Paducah Lumber Co. v. Water Co., 89 Ky. 340, 12 S. W. 554, 13 S. W. 249, 7 L. R. A. 77, 25 Am. St. Rep. 536, and Gorrell v. Water Co., 124 N. C. 328, 32 S. E. 720, 46 L. R. A. 513, 70 Am. St. Rep. 598, in which the opposite conclusion was reached, are to be distinguished from the California case against the Ukiah Water Company, by reason of the fact that in the case of the Paducah Lumber Company and in the Gorrell Case there was an express contract to do certain specific things, which appears to have been equivalent to the stipulations in the plaintiffs' contract in the case at bar. The court further say: "In each of these cases it will be observed that the court was dealing with contracts whereby the wa-did not need to be informed that the elabter companies, for valuable concessions and exclusive privileges, had agreed to do and to maintain certain specific things by way of protection from fire, and the gravamen of the charge against each and all of the companies was that they had violated their contract in failing to do the particular things for the doing of which they had expressly contracted. The broad distinction between those cases and the one at bar is, as pointed out in the opinion of the trial judge, that there is no express covenant in the contract between this The defendant corporation proceeded to construct and operate its plant and entered upon its public service and the performance of its contract. It well knew that the plaintiff town, relying upon its express contract with the defendant, would omit to make any other arrangements for the supply of water, or provide any other means for the extinguishment of fires. The defendant's servants orate provisions of the contract respecting the supply of water through its hydrants were for the purpose of affording protection against the destruction of property by fire. They well knew the disastrous results likely to flow from any neglect on their part to perform the contract to furnish water of sufficient volume and pressure to extinguish fires. Under such circumstances damages from loss of property by fire are not only the natural consequences of the defendant's wrongful neglect, but "such as may reasonab In 28 Am. & Encyc. of Law (2d Ed.) p. 625, it is said: "Case will also lie for a violation of the duty which the contractual * * * * * * plation of the parties at the time they made | because it is the means by which a fraud is the contract as the probable result of the accomplished, and the fraud is in no way dibreach of it." The injuries sustained are minished because the seller has at the same manifestly such as, according to common ex- time bound himself by a warranty." perience and the usual course of events, might reasonably be anticipated. Indeed it is impossible to conceive of any class of contracts, or of contracts relating to any subject-relations between the parties involve, in matter, with respect to which the conse- many cases where assumpsit is a concurrent quences of a breach are more palpably natur- remedy. Although assumpsit will al or more readily anticipated. also usually lie for a breach of the contract, action on the case for the breach of the common-law duty is often the better remedy. It will also lie concurrently with assumpsit for a breach of duty arising out of an express or implied contract." Burnett v. Lynch, 5 Barn. & Cres. 589 (12 E. C. L. 327) is cited in support of the last statement. In that case the defendant had taken an assignment of a lease subject, not only to the payment of rent, but to the performance of the covenants, and had thereby made it his duty to pay the rent and perform the covenants. It was held by Abbott, C. J., that either assumpsit or case was maintainable for a breach of that duty, citing Kinlyside v. Thornton, 2 Wm. Bl. 1111. In the opinion of Bailey, J., it is said: "It is unnecessary to go through the cases in which it has been decided that although there be an express contract, a party is not bound to resort to that contract as the gist of the action, but he may declare on the tort, and say that the party has neglected to perform his duty. In Dickson v. Clifton, 2 Wils. 319, there can be no doubt that an action of assumpsit might have been maintained against the captain for not receiving and carrying the corn, or for not taking care of the cargo; but there the plaintiff described the contract in specific terms, and brougnt case against the defendant for negligence in the performance of his duty. That could only be because the express contract between the parties created a duty, for the breach of which an action of tort might be maintained." See, also, 1 Chitty on Plead. (16th Ed.) p. 162, with the observations of Lord Ellenborough on Govett v. Radnidge, 3 East, 70, there cited, and Broom's Legal Maxims, 201, 202, and cases cited. Under the stipulation in the report the defendant is entitled to plead anew in the event that the demurrer is overruled. All of the other objections interposed by the defendant to the maintenance of the action involve a question of fact to be heard upon the trial of the cause. Whether the defendant's breach of duty in connection with the performance of its contract was culpable negligence, and, if so, whether such breach of duty on its part, or "the negligence of the plaintiffs themselves, or the criminal act of a stranger, or an atmospheric condition," was the proximate cause of the plaintiffs' loss are questions not raised by the demurrer, but are determinable by the trial court. The solution of them may often be attended with difficulty, but there is no reasonable ground for apprehending that such difficulty will be essentially different from that experienced in numerous other cases of a similar character. When, therefore, the established principles of law are applied to this case as to all others, and the contract between these parties is held to possess the binding force and efficacy of all other analogous contracts, the conclusion is irresistible that, upon proof of the facts stated in the declaration, the defendant would be liable to the plaintiffs, in an appropriate action, for the damages caused by its negligence in failing to perform a duty arising from its contractual relations with the plaintiffs. 2. But the defendant further contends that the plaintiffs have misconceived their remedy, and that if any action can be maintained, it must be an action of assumpsit, and not of tort. It is the opinion of the court that this contention is not sustainable, either upon reason or authority. As observed by the court in Ashley v. Root, 4 Allen (Mass.) 504: "This is one of a numerous class of cases where a party may elect to sue either in contract or tort. At common law he might sue in assumpsit for breach of contract, or in case for breach of duty." In that action a principal was allowed to recover in an action of tort against his agent for all the damage caused by a breach of duty by the agent, including his neglect to pay over on demand money which he had collected as agent. Either case or assumpsit may also be supported for a false warranty in the sale of goods. Mahurin v. Harding, 28 N. H. 128, 59 Am. Dec. 401. In the opinion the court say: In the case at bar an action on the case is brought to recover damages for the consequential injuries resulting from the neg ligent manner in which the defendant company performed a duty created by an express contract between the parties. It is not, properly speaking, an action based on the nonfeasance of the defendant. It is brought to recover damages for the refusal of the defendant to perform the contract. It sufficiently appears that the defendant laid the pipes, erected the hydrants, and fully established its plant, and for a time operated it to the satisfaction of the plaintiffs. The action is based on the defendant's negligence iu the operation and management of the fied by a want of vigilance and attention in Action by Louise M. Getchell against Eldiscovering a leak or adjusting a shut-off. | bridge A. Atherton. Case reported. JudgAn action ex contractu might have been ment for plaintiff. maintainable, as in Knappman Whiting Co. The declaration in the plaintiff's writ was as follows: defendant at said Bangor, on the 1st day of "In a plea of trespass, for that the said August, A. D. 1907, with force and arms broke and entered the plaintiff's close in said Bangor, and then and there dug up and V. Water Co., 64 N. J. Law, 240, 45 Atl. 692, 49 L. R. A. 572, 81 Am. St. Rep. 467, where the obligation of the contract was enforced and the water company held liable for a loss by fire resulting from a failure in the water pressure which was not due to any negligence of the company. But here the plain-subverted the soil and earth, and then and tiffs elected to bring case, as they were legally entitled to do, a form of action obviously more favorable to the defendant, since it imposes upon the plaintiffs the burden of proving negligence on the part of the defendant respecting the duty which it engaged to per form. According to the stipulations in the report, the entry must therefore be Demurrer overruled. (104 Me. 198) GETCHELL v. ATHERTON. (Supreme Judicial Court of Maine. July 8, 1908.) 1. DEFDS (§ 118*) — AMBIGUITY IN DESCRIPTION--EVIDENCE TO EXPLAIN. there caused to be put, placed, and erected a wooden building in and upon the said close, and kept and continued the said wooden building so there put, placed, and erected, without the leave or license, and against the will of the said plaintiff, for a long of August, A. D. 1907, hitherto, and thereby space of time, to wit, from the said 1st day and therewith during all the time aforesaid greatly incumbered the said close, and hindered the said plaintiff from having the use, benefit, and enjoyment thereof in so large and ample a manner as she might and otherwise would have done. And other wrongs to the said plaintiff the said defendant then and there did, against the peace of the state, and to the damage of said plaintiff (as she says) the sum of $300." When, upon applying to the surface of the Plea, the general issue, with brief stateearth the language used in a deed to describe ment "that the premises described in the the land conveyed, an ambiguity in the language is revealed, the court, in order to deter-writ and declaration of the plaintiff are not mine the ambiguity, may receive and consider the property of the said plaintiff, but is now evidence of the situation and the circumstances and was at the date of the plaintiff's writ and of the acts of the parties previous and subsequent to the conveyance. [Ed. Note. For other cases, see Deeds, Cent. Dig. §§ 239, 599; Dec. Dig. § 118.*] 2. DEEDS (§ 118*)-LATENT AMBIGUITY-DE SCRIPTION. The owner of a double tenement conveyed one tenement by a deed describing it as "the northerly tenement," and describing the dividing line as "running a westerly course by the partitions as they now stand," etc. At the westerly end of the building were two partitions, both running westerly and inclosing between them a small yard. Held, that a latent ambiguity was revealed as to which of these two partitions was the one intended by the parties to the deed. [Ed. Note.-For other cases, see Deeds, Cent. Dig. §§ 239, 599; Dec. Dig. § 118.*] 3. DEEDS (§ 114*)-CONSTRUCTION - DESCRIP TION. and prior thereto the property and freehold of the said defendant, and the defendant says that he is not guilty of the acts of trespass complained of in said writ and declaration of the plaintiff." Tried at the January term, 1908, Supreme At the Judicial Court, Penobscot county. conclusion of the evidence, the case was reported to the law court "for determination upon so much of the evidence as would be legally admissible. If judgment be for the plaintiff, damages to be awarded to be ten dollars and costs." Argued before EMERY, C. J., and SAVAGE, PEABODY, CORNISH, KING, and BIRD, JJ. A. J. Merrill, for plaintiff. P. H. Gillin, It appeared from the evidence that the small yard could be entered only from the south-for defendant. ern tenement, that it had been used before and after the conveyance almost exclusively by the tenants of the southern tenement as a part of that tenement, and that the southern tenement could have no other yard while the northern tenement had ample room for a yard. Held that, in the conveyance of the northern tenement, the parties intended the northern of the two partitions and that the yard south of it was not conveyed. [Ed. Note. For other cases, see Deeds, Cent. Dig. 316; Dec. Dig. & 114.*] (Official.) EMERY, C. J. The question is which party has title to a small open space or yard, 12x21 feet in extent, in the rear of a double tenement house in Bangor, bounded on The title to the the east by French street. whole house and lot including both tenements was in the same person from 1870 to December 30, 1890, though the occupants of the different tenements were different persons. In 1890, December 30, the owner of Report from Supreme Judicial Court, Pe- the whole property divided it by granting nobscot County. the northerly tenement with the following |