of water by gravity alone from a coal company's mine. As said at page 147 of 113 Pa. of the opinion: "It is clear that for the consequence of this flow, which by the mere force of gravity naturally, and without any fault of the defendants, carried the water into the brook and thence to the plaintiff's pond, there could be no responsibility as damages on the part of the defendants." And on page 155 of 113 Pa. it is said: "The defendants introduced nothing into the water to corrupt it. The water flowed into Meadow brook just as it was found in the mine. Its impurities were from natural, and not from artificial, causes." The water was not taken from the stream, used in washing the coal, and returned to the stream in a polluted condition, carrying foreign substances, as in this case. Even the Pennsylvania court in the later case of Lentz v. Carnegie Bros. 145 Pa. 612, 27 Am. St. Rep. 717, 23 Atl. 219, disposed of a question similar to that here involved, upon a theory not materially out of harmony with our present conclusion. Some contention is made by counsel for appellant against certain instructions given by the court to the jury, which, it is contended, in effect permit the jury to ignore the evidence tending to show pollution of the stream from other sources than the company's mining plant. The instructions, as a whole, however, we think, render it quite clear that the jury were plainly given to understand that appellants were to be held liable only for their own acts and to the extent of the damage attributable there to. It is contended that the trial court erred in the admission of evidence over objections of counsel for appellants, tending to show the maintenance of cesspools in connection with the dwellings of the company's employees near the stream. We have noticed that this was one of the claimed causes of the pollution of the stream alleged in respondents' complaint. It seems to us that the objection to this evidence goes only to its weight, and therefore that its admission must rest largely in the discretion of the trial court. Evidence is not inadmissible merely because it does not within itself prove all that the party offering it is contending for as to the particular item of damage claimed. We are not able to see that the evidence was irrelevant at the time it was offered, though we must confess that, if respondents' right of recovery rested alone upon their claimed pollution of the stream from this source, appellants probably would have been entitled to a nonsuit. However, we do not find in the record any motion to exclude this evidence from the consideration of the jury made after its admission, nor do we find any request for instructions touching the consideration of this evidence by the jury. Upon the whole record, we are not able to see that any error has been committed in this regard which counsel for appellants can now complain of. It is apparent from the record before us, viewed as a whole, that this claim of pollution of the stream was all but lost sight of in the trial of the case; and it is hard to believe that it had any influence upon the minds of the jury as a contributing cause of the pollution of the stream. Upon the whole record, we do not feel warranted in disturbing the judgment upon this ground. We conclude that the record is free from prejudicial errors, and that the judgment must be affirmed. 2. A contract establishing meter rates for water for a certain amount of consumption or less per month, a less rate for a consumption between the amount specified and a larger maximum quantity, and so on until a rate is fixed for all consumption over the final maximum specified, with a provision that the minimum amount of bill under one rate shall not be less than the maximum under the preceding rate, does not require payment of the rates fixed for all consumption between the divisions specified, but fixes classes of consumers to be charged a single rate according to the total amount of their consumption. A PPEAL by intervener from a decree of tract to which the plaintiff is not a party, the Chancery Court for Mississippi and where there is no privity of contract County, construing a contract between the between plaintiff and defendant. water company and the city of Blytheville with respect to rates to be charged to consumers. Reversed. The facts are stated in the opinion. The provisions of the franchise ordinance as to meter rates to be charged private consumers were essentially a contract between the water company and the city. Cleburne Water, Ice & Lighting Co. v. Cleburne, 13 Tex. Civ. App. 141, 35 S. W. 734. The statutory remedy in cases of this character is exclusive, and resort cannot be had to the courts until the relief to which a consumer is entitled has been denied him under the remedy provided by statute. Nebraska Teleph. Co. v. State, 55 Neb. 627, 45 L.R.A. 113, 76 N. W. 171; State ex rel. Moore v. Chicago, St. P. M. & O. R. Co. 19 Neb. 476, 27 N. W. 434. Recovery will not be allowed on a conlated in contract with municipality, see note to Pond v. New Rochelle Water Co. 1 L.R.A. (N.S.) 958. See also Robbins v. Bangor R. & Electric Co. 1 L.R.A. (N.S.) 963, on the same question. The cases involving the right of a consumer to compel a public service corporation to respect the rates stipulated in the contract between it and the city are extremely few. Of the cases actually discussing this question, Pond v. New Rochelle Water Co. supra, and WALTON V. PROUTT are the most satisfactory. These cases agree that the consumer has the right to bring such an action. In Wood v. New York Inter-Urban Water Co. 157 App. Div. 407, 142 N. Y. Supp. 626, holding that a consumer of water has a right of action against the water company for the enforcement of rates stipulated in its contract with the city, the court does not stop to discuss the question, but cites Pond v. New Rochelle Water Co. supra, as authority. In Farnsworth v. Boro Oil & Gas Co. 76 Misc. 37, 134 N. Y. Supp. 348, affirmed on the opinion of the court below in 155 App. Div. 79, 139 N. Y. Supp. 736, it is held that an inhabitant of a town who takes gas from a public service corporation is a proper party to maintain an action to restrain the gas company from charging a higher rate than that agreed upon at the time it received consent from the town board to construct its pipe lines. It does not appear from the case, however, that the gas company raised any question as to the right of the plaintiff to bring the action, and the court therefore dismisses the subject with a sentence. In Cleburne Water, Ice, & Lighting Co. Howsman v. Trenton Water Co. 119 Mo. 304, 23 L.R.A. 146, 41 Am. St. Rep. 654, 24 S. W. 784; Davis v. Clinton Waterworks Co. 54 Iowa, 59, 37 Am. Rep. 185, 6 N. W. 126; Becker v. Keokuk Waterworks, 79 Iowa, 419, 18 Am. St. Rep. 377, 44 N. W. 694; Fowler v. Athens City Waterworks Co. 83 Ga. 219, 20 Am. St. Rep. 313, 9 S. E. 673; Mott v. Cherryvale Water & Mfg. Co. 48 Kan. 12, 15 L.R.A. 375, 30 Am. St. Rep. 267, 28 Pac. 989; Jefferson v. Asch, 53 Minn. 446, 25 L.R.A. 257, 39 Am. St. Rep. 618, 55 N. W. 604; Eaton v. Fairbury Waterworks Co. 37 Neb. 546, 21 L.R.A. 653, 40 Am. St. Rep. 510, 56 N. W. 201. The construction of the franchise adopted by the lower court is correct, and without regard to the technical bar to Walton's suit, and the technical defects in the manner in which he sought to present the issue, his appeal must be dismissed. Straus V. Wanamaker, 175 Pa. 213, 34 Atl. 648; 2 Bl. Com. p. 380; Hazlev. Cleburne, 13 Tex. Civ. App. 141, 35 S. W. 733, an action by a city to enjoin a public service corporation from charging a higher rate for water than that authorized by the contract between the parties, the court declares that no citizen has the right to bring the action, and bases thereupon the conclusion that the city must therefore be the proper party to bring the action. The court says: "We think it clear that no public duty was imposed upon the appellant [water company] by the contract with the city, nor did any contractual relations exist between the appellant and the citizens of Cleburne that would give them the right to recover for a breach of the contract. follows, we think, that, as the city had undertaken to supply the citizens with water, and having contracted with appellant to perform that undertaking, and as the citizens could not sue, the city had the right to sue to enforce the performance thereof. The city not only had the right to sue to enforce the contract, but it was its duty to see that the contract was enforced, and the rights of the citizens protected thereunder." It ton Coal Co. v. Buck Mountain Coal | damages resulting from a breach of the con- weight of authority in holding that a citizen cannot maintain a suit for damages resulting from a breach of a contract of this kind, putting it on the ground that the citizens of the municipality are not parties to McCulloch, Ch. J., delivered the opinion the contract. Collier v. Newport Water, of the court: This case involves a construction of the language of a franchise granted by the city of Blytheville to a private corporation, authorizing said corporation to furnish water to the inhabitants of said city. The controversy relates to the rates authorized to be charged for the consumption of water. Te first question presented, however, is whether or not appellant, a citizen of the city, has a right to maintain an action to compel those acting under the franchise to comply with the terms thereof. Creditors of the water company instituted an action in the chancery court of Mississippi county, and a receiver was appointed by the court to take charge of the plant and operate it during the pendency of the litigation. The receiver filed a petition asking the court to construe the contract between the company and the city, with respect to the scale of charges to be made against the consumers of water, and to give instructions to the received on that score. Appellant, who was a citizen of the city, intervened, and asked that the contract be construed, and the receiver be ordered to carry out the contract according to the court's construction of it. The court refused to place upon the contract the interpretation contended for by appellant, and an appeal is prosecuted to this court. Light & P. Co. 100 Ark. 47, 139 S. W. 635, Ann. Cas. 1913D, 458. The question now presented is different from that, and we hold that, while there is no right of action for a breach of the contract, a citizen of the municipality, notwithstanding the fact that he cannot be treated as a party to the contract, has a right to sue to compel the performance of the public duty which rests upon the holder of the franchise. We are not concerned at this time about whether the proper remedy is in equity or at law by mandamus. No suit could be maintained either at law or in equity against the corporation in the hands of the receiver without first obtaining the consent of the court, and a citizen had a right to come into the court of equity where the affairs of the corporation are being administered through an agency of the court. The controversy arises over the interpretation of the following clause of the contract regulating rates: "Any consumer whose annual rental under the flat rate for any single connection equals $15 per annum may elect to have his service metered. Meter Rates. 2,500 gallons or less per month, per 2,500 to 5,000 gal. per month, per 5,000 to 10,000 gal. per month, per ... .30 .25 .20 Above 10,000 gal. per month, per M gal. .15 "The minimum amount of bill under one rate shall not be less than the maximum under the preceding rate. The minimum meter rate to be 75¢ per month. The water company may make special contracts with private concerns for the use of water for unusual, special, or peculiar purposes or for purposes not specified in the foregoing table of rates, but it will not be required to furnish any service connection of less than $6 per annum." We are of the opinion that appellant, as a citizen and user of water in the city, has a right to maintain an action to compel the water company to comply with its contract. There are authorities which clearly sustain that view, and we think they are correct. 1 Farnham, Waters, § 160, B; Pond v. New Rochelle Water Co. 183 N. Y. 330, 1 L.R.A. (N.S.) 958, 76 N. E. 211, 5 Ann. Cas. 504; Robbins v. Bangor R. & Electric Co. 100 Me. 496, 1 L.R.A. (N.S.) 963, 62 Atl. 136. The New York court of appeals, in the case cited above, based its conclusion on the ground that the contract was made for the benefit of the citizens of the municipality, and that a citizen had a It is contended on behalf of the appellee right to sue on the contract. The Maine that the proper interpretation of the concourt based its conclusion on the ground tract means that what is called the "accuthat mandamus was the proper remedy to mulative" or "sliding" scale means that a compel the performance of the contract, and consumer must pay 30 cents per 1,000 galthat an individual had the right to sue to lons for the first 2,500 gallons used, and compel the performance of the public duty. 25 cents per 1,000 for excess over 2,500 galBoth of those decisions distinguish the ques-lons up to 5,000 gallons, and so on up to tion of the right of a citizen to sue for the maximum amount provided for. On the joint account of himself and wife is liable to him therefor except so far as he may have ratified the checks or received the benefit of them. (March 23, 1915.) PPEAL by defendant from a judgment A of the Circuit Court for Muhlenberg County, overruling a motion for a new trial in an action brought to recover the amount alleged to have been deposited to the joint credit of plaintiffs in defendant's bank, and which it refused to pay. Affirmed. The facts are stated in the opinion. Messrs. Walker Wilkins and O'Rear & Williams for appellant. Messrs. H. N. Lukins and Miller & Sandidge, for appellees: other hand, it is contended by appellant that, wife alone a man's money deposited to the the contract should be construed as adopting what is termed the "flat" scale, which constitutes a division of customers into classes according to the amount of water consumed, and provides a rate for each class. The court adopted appellee's contention, but we think that is an erroneous interpretation of the contract. Much plainer language could have been used if the framers of the franchise had intended what the court interprets the language to mean. It could easily have been stated that the rate of 30 cents per 1,000 should be charged for the first 2,500 gallons, and the lower rates for the excess, on up to the maximum; but, instead of that, the language has, we think, been employed which means quite another thing. If that was the correct view, no meaning whatever could be given to the clause which provides for a minimum amount under each classification of rates. In other words, if the framers of the city ordinance had intended it to mean that such a rate should be charged up to a certain amount, and another rate for the excess, it would have been useless to have prescribed a minimum rate on each separate classification. When the whole of this scale of rates is read together, we are convinced that it means what the appellant contends for, that is to say, the flat scale, which divides the customers into classes according to the quantity of water used per month,and that the consumers are entitled to have water furnished according to the rates fixed for the class within which each falls. · Banks: payment of money de- This note does not include questions arising upon the death of one of two or more depositors, nor cases of deposits by public officers. Deposits by partnerships are also excluded as involving the general agency of partners in the use of the firm name. Violations of agreements to pay out trust funds only on the assent of the trustee's surety are not included. For validity of If several persons make a deposit to their joint credit in bank, it must have the signature of all of them appended to the check before paying it. 2 Bolles, Bkg. p. 593; Morse, Banks & Bkg. § 435; 2 Dan. Neg. Inst. § 1612; Coote v. Bank of United States, 3 Cranch, C. C. 50, Fed. Cas. No. 3,203; Tompkins v. McGinn, Tex. Civ. App. 85 S. W. 452; Denigan v. Hibernia Sav. & L. Soc. 127 Cal. 137, 59 Pac. 389; Columbia Finance & T. Co. v. First Nat. Bank, 116 Ky. 374, 76 S. W. 156; Neiman v. Beacon Trust Co. 170 Mass. 452, 64 Am. St. Rep. 315, 49 N. E. 748. The money in controversy was in Blandford's hands, as agent, being held by him for Sam Leachman, which fact was known by the cashier of the bank. The bank would not be excused even if the money was deposited by him, at the instance of the cashier, to the credit of Lizzie Leach man. Duckett v. Nationa! Mechanics' Bank, 86 Md. 400, 39 L.R.A. 84, 63 Am. St. Rep. 513, 38 Atl. 983; Munnerlyn v. Augusta Sav. Bank, 88 Ga. 333, 30 Am. St. Rep. 159, 14 S. E. 554; State Nat. Bank v. Reilly, 124 Ill. 464, 14 N. E. 657; Essex County v. Newark City Nat. Bank, 48 N. J. Eq. 51, 21 Atl. 185; Walker v. Manhattan Bank, 25 Fed. 255; 1 Morse, Banks & Bkg. § 317; Swift v. Williams, 68 Md. 237, 11 Atl. 835. agreement with surety as to custody or control of trust funds, see the note to Fidelity & D. Co. v. Butler, 16 L.R.A. (N.S.) 994. Generally as to liability of coexecutor for default of one permitted to manage estate, see the note to Cheever v. Ellis, il L.R.A. (N.S.) 296. In general. Withdrawals from a joint deposit in bank require the authority of all the depositors. GISH BKG. Co. v. LEACHMAN; Columbia court: a Hurt, J., delivered the opinion of the four months, until the year 1913. In the meantime Leachman and his wife and son The Gish Banking Company is a bank- and daughter had removed to the city of ing corporation at Central City, and doing Louisville. A short time previous to June, a general banking business. Sam Leach- 1913, Samue! Leachman entered into man owned a house and lot in the town, contract with C. H. Blandford & Company, real estate agents in Greenville, to prowhich was conveyed to him by deed on May 25, 1901. About the year 1908, he cure a sale for him of the house and lot executed a note to appellant for a loan, commission of 5 per cent for making the at the sum of $2,000; they to have a and to secure it he gave appellant a mortsale. The contract was in writing, and gage upon this house and lot, in which was signed by Samuel Leachman and his his wife, Lizzie Leachman, joined. She wife, Lizzie Leachman. Shortly before the also, jointly with Sam Leachman, executed 19th of June, C. H. Blandford & Company the note sued on, but for what purpose notified Samuel Leachmai. that they could it does not appear, as she seems to have make a sale of his property for him for owned no property of her own. This note $1,700. The real estate firm received a was not paid off, but was renewed every telegram from Louisville, signed by SamFinance & T. Co. v. First Nat. Bank, | posited money under an order of the court 116 Ky. 374, 76 S. W. 156; Neiman v. directing that it be not withdrawn except on Beacon Trust Co. 170 Mass. 452, 64 Am. St. checks countersigned by the order of the Rep. 315, 49 N. E. 748 (infra, next sub-court pays out money on uncountersigned division); Dixon's Case, 2 Lewin, C. C. 178. Thus, in Dixon's Case, supra, it was held that where a banker holds a joint deposit for three persons, which, by the agreement, requires the three persons to draw it, and one of the depositors obtains the money by securing others to personate his codeposit ors, he commits a fraud on the banker. In Columbia Finance & T. Co. v. First Nat. Bank, 116 Ky. 374, 76 S. W. 156, cited and quoted in GISH BKG. Co. v. LEACHMAN, the bank, on the direction of one of the three depositors, had appropriated part of the deposit to the payment of a debt of that depositor to it. In Mulcahy v. Devlin, 2 N. Y. City Ct. Rep. 218, the court observed that if an account be in the name of “A or B," on notice of one of them not to pay the other the bank may interplead, as such a payment after such notice would mean liability for the amount belonging to the notifying party. But in Carr v. Fidelity Bank, 126 N. C. 186, 35 S. E. 246, where the agent of two tenants in common deposited their rents under the name of "A and B," and one of such tenants in common drew most of the money out by a check signed "A and B" it was held that the bank was not liable, as the form of the account was that of a partnership, and therefore one party had the right to draw it out by check signed in this form. Similarly, when checks require a counter signature, the bank is liable if it pays without it. Thus, where a partnership notified a bank not to pay its checks unless they were countersigned by its bookkeeper, and the bank nevertheless paid certain checks with out being so countersigned, it was held that the bank, suing for an overdraft, could not recover the amount of these checks without showing that the firm received the benefit of the payment. Gladstone Exch. Bank v. Keating, 94 Mich. 429, 53 N. W. 1110. Where a bank in which a receiver de checks of the receiver, although aware of the order, it is liable for the money so paid out and misappropriated by the receiver. American Nat. Bank v. Fidelity & D. Co. 129 Ga. 126, 58 S. E. 867, 12 Ann. Cas. 666, dictum, as the remedy against the bank had been lost by the statute of limitations. extent of liability where payment is made to one joint depositor. It is the extent of the interest of the wronged depositor at the time of the withdrawal which determines the amount of liability of the bank which has paid out the joint deposit on the order of the other depositor. Thus, where two persons made a joint deposit in a bank which agreed not to pay any part thereof except upon the joint check of both depositors, and a few days later the bank, on the representation of one of the depositors that she had become the owner of the whole deposit, paid her the entire amount thereof, the bank was held liable to the other depositor for his interest in the deposit at the time of its withdrawal. He, as a matter of fact, owned one half of the deposit when made and three fourths at the time of the withdrawal, but the bank was not aware at the time of the deposit of the respective rights of the parties, and made no inquiry. Neiman v. Beacon Trust Co. 170 Mass. 452, 64 Am. St. Rep. 315, 49 N. E. 748. Trustees. Generally speaking, money deposited with a bank to the credit of more than one trustee cannot be lawfully withdrawn without the order of all the trustees. Swift v. Williams, infra. Thus in Innes v. Stephenson, 1 Moody & R. 145, it was held that bankers paying money on the signature of one assignee in bankruptcy and on the forged signature of the other are liable for the money. |