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of water by gravity alone from a coal com- nor do we find any request for instructions pany's mine. As said at page 147 of 113 touching the consideration of this evidence Pa. of the opinion: “It is clear that for by the jury. Upon the whole record, we the consequence of this flow, which by the are not able to see that any error has been mere force of gravity naturally, and without committed in this regard which counsel any fault of the defendants, carried the for appellants can now complain of. It is water into the brook and thence to the plain- apparent from the record before us, viewed tiff's pond, there could be no responsibility as a whole, that this claim of pollution of as damages on the part of the defendants." the stream was all but lost sight of in the

And on page 155 of 113 Pa. it is said: trial of the case; and it is hard to believe “The defendants introduced nothing into the that it had any influence upon the minds water to corrupt it. The water flowed into of the jury as a contributing cause of the Meadow brook just as it was found in the pollution of the stream. Upon the whole mine. Its impurities were from natural, record, we do not feel warranted in disand not from artificial, causes."

turbing the judgment upon this ground. The water was not taken from the stream, We conclude that the record is free from used in washing the coal, and returned to prejudicial errors, and that the judgment the stream in a polluted condition, carrying must be affirmed. foreign substances, as in this case. Even the Pennsylvania court in the later case of Morris, Ch. J., and Holcomb, Mount, Lentz v. Carnegie Bros. 145 Pa. 612, 27 Am. and Chadwick, JJ., concur. St. Rep. 717, 23 Atl. 219, disposed of a question similar to that here involved, upon Petition for rehearing denied. a theory not materially out of harmony with our present conclusion. Some contention is made by counsel for

ARKANSAS SUPREME COURT. appellant against certain instructions given by the court to the jury, which, it is con

ALLEN WALTON, Intervener, Appt., tended, in effect permit the jury to ignore the evidence tending to show pollution of

F. G. PROUTT, Receiver of Blytheville the stream from other sources than the

Water Company. company's mining plant. The instructions, a whole, however, we think, render it

(- Ark.

174 S. W. 1152.) quite clear that the jury were plainly given / Water – municipal supply right of to understand that appellants were to be

consumer to enforce contract. held liable only for their own acts and to 1. A consumer may maintain an action the extent of the damage attributable there to enforce the rates provided in a contract to.

between a municipal corporation and a corIt is contended that the trial court erred poration for supplying water to the inhabin the admission of evidence over objections

itants. of counsel for appellants, tending to show Same

sliding scale the maintenance of cesspools in connection

struction. with the dwellings of the company's em

2. A contract establishing meter rates for

water for a certain amount of consumption ployees near the stream. We have noticed

or less per month, a less rate for a con. that this was one of the claimed causes sumption between the amount specified and of the pollution of the stream alleged in a larger maximum quantity, and so on until respondents' complaint. It seems to us that a rate is fixed for all consumption over the the objection to this evidence goes only to final maximum specified, with a provision its weight, and therefore that its admission that the minimum amount of bill under one must rest largely in the discretion of the rate shall not be less than the maximum trial court. Evidence is not inadmissible

under the preceding rate, does not require merely because it does not within itself tion between the divisions specified, but

payment of the rates fixed for all consumpprove all that the party offering it is con- fixes classes of consumers to be charged a tending for as to the particular item of single rate according to the total amount of damage claimed. We are not able to see their consumption. that the evidence was irrelevant at the time it was offered, though we must confess that,

(March 15, 1915.) if respondents' right of recovery rested alone

Note. Consumer's right to com pel upon their claimed pollution of the stream

public service corporation to respect from this source, appellants probably would rates stipulated in contract with muhave been entitled to a nonsuit. However, nicipality. we do not find in the record any motion to

For a discussion of the earlier cases inexclude this evidence from the considera- volving consumer's right to compel water tion of the jury made after its admission, company to furnish water at rates stipu.

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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 Howsman v. Trenton Water Co. 119 Mo. with respect to rates to be charged to con- 304, 23 L.R.A. 146, 41 Am. St. Rep. 654, sumers. Reversed.

24 S. W. 784; Davis v. Clinton Waterworks The facts are stated in the opinion. Co. 54 Iowa, 59, 37 Am. Rep. 185, 6 N. W. Mr. Allen Walton in propria persona. 126; Becker v. Keokuk Waterworks, 79 Mr. J. S. Allen, for appellee:

Iowa, 419, 18 Am. St. Rep. 377, 44 N. W. The provisions of the franchise ordinance 694; Fowler v. Athens City Waterworks Co. as to meter rates to be charged private con- 83 Ga. 219, 20 Am. St. Rep. 313, 9 S. E. sumers were essentially a contract between 673; Mott v. Cherryvale Water & Mfg. Co. the water company and the city.

48 Kan. 12, 15 L.R.A. 375, 30 Am. St. Rep. Cleburne Water, Ice & Lighting Co. v. 267, 28 Pac. 989; Jefferson v. Asch, 53 Minn. Cleburne, 13 Tex. Civ. App. 141, 35 S. W. 446, 25 L.R.A. 257, 39 Am. St. Rep. 618, 734.

55 N. W. 604; Eaton v. Fairbury WaterThe statutory remedy in cases of this works Co. 37 Neb. 546, 21 L.R.A. 653, 40 character is exclusive, and resort cannot be Am. St. Rep. 510, 56 N. W. 201. had to the courts until the relief to which The construction of the franchise adopted a consumer is entitled has been denied him by the lower court is correct, and without under the remedy provided by statute. regard to the technical bar to Walton's suit,

Nebraska Teleph. Co. v. State, 55 Neb. and the technical defects in the manner in 627, 45 L.R.A. 113, 76 N. W. 171; State which he sought to present the issue, his ex rel. Moore v. Chicago, St. P. M. & O. R. appeal must be dismissed. Co. 19 Neb. 476, 27 N. W. 434.

Straus Wanamaker, 175 Pa. 213, Recovery will not be allowed on a con- ' 34 Atl. 648; 2 B). Com. p. 380; Hazlelated in contract with municipality, see note , v. Cleburne, 13 Tex. Civ. App. 141, 35 S. W. to Pond v. New Rochelle Water Co. 1 L.R.A. | 733, an action by a city to enjoin a public (N.S.) 958.

service corporation from charging a higher See also Robbins v. Bangor R. & Electric rate for water than that authorized by the Co. 1 L.R.A. (N.S.) 963, on the same ques-contract between the parties, the court detion.

clares that no citizen has the right to bring The cases involving the right of a con- the action, and bases thereupon the conclusumer to compel a public service corpora- sion that the city must therefore be the tion to respect the rates stipulated in the proper party to bring the action. The court contract between it and the city are ex- says: “We think it clear . . that no tremely few. Of the cases actually discuss- public duty was imposed upon the appellant ing this question, Pond v. New Rochelle (water company] by the contract with the Water Co. supra, and WALTON V. PROUTT city, nor did any contractual relations exist are the most satisfactory. These cases agree between the appellant and the citizens of that the consumer has the right to bring Cleburne that would give them the right to such an action.

recover for a breach of the contract. It In Wood v. New York Inter-Urban Water follows, we think, that, as the city had un. Co. 157 App. Div. 407, 142 N. Y. Supp. 626, dertaken to supply the citizens with water, holding that a consumer of water has a and having contracted with appellant to right of action against the water company perform that undertaking, and as the citi. for the enforcement of rates stipulated in zens could not sue, the city had the right its contract with the city, the court does to sue to enforce the performance thereof. not stop to discuss the question, but cites | The city not only had the right to sue to Pond v. New Rochelle Water Co, supra, as enforce the contract, but it was its duty authority.

to see that the contract was enforced, and In Farnsworth v. Boro Oil & Gas Co. 76 the rights of the citizens protected thereMisc. 37, 134 N. Y. Supp. 348, affirmed on under.” the opinion of the court below in 155 App. See, upon the question of the right of a Div. 79, 139 N. Y. Supp. 730, it is held that property owner to maintain action an inhabitant of a town who takes gas from against a water company for failure to sup. a public service corporation is a proper par- ply sufficient water for fire purposes, as ty to maintain an action to restrain the required by its contract with the munici. gas company from charging a higher rate pality, the note to Hone v. Presque Isle than that agreed upon at the time it re- Water Co. 21 L.R.A.(N.S.) 1021. And see ceived consent from the town board to con- later cases cited in notes to Baum v. Somerstruct its pipe lines. It does not appear ville Water Co. 46 L.R.A.(N.S.) 966, and from the case, however, that the gas com- Howsmon v. Trenton Water Co. 23 L.R.A. pany raised any question as to the right 146. of the plaintiff to bring the action, and the As to the establishment and regulation court therefore dismisses the subject with of municipal water supply, generally, a sentence.

note to State ex rel. Hallauer v. Gosnell, In Cleburne Water, Ice, & Lighting Co. 1 61 L.R.A. 33.

E. L. D.

an

see v.

ton Coal Co. Buck Mountain Coal damages resulting from a breach of the conCo. 57 Pa. 301, 2 Mor. Min. Rep. 389; Ft. tract. This court has followed the great Smith Light & Traction Co. v. Kelley, 94 weight of authority in holding that a citiArk. 461, 127 S. W. 975; Phænix Cement zen cannot maintain a suit for damages reSidewalk Co. v. Russellville Water & Light sulting from a breach of a contract of this Co. 101 Ark. 22, 140 S. W. 996.

kind, putting it on the ground that the citi

zens of the municipality are not parties to McCulloch, Ch. J., delivered the opinion the contract. Collier v. Newport Water, of the court:

Light & P. Co. 100 Ark. 47, 139 S. W. 635, This case involves a construction of the Ann. Cas. 1913D, 458. The question now language of a franchise granted by the city presented is different from that, and we of Blytheville to a private corporation, au- hold that, while there is no right of action thorizing said corporation to furnish water for a breach of the contract, a citizen of to the inhabitants of said city. The con- the municipality, notwithstanding the fact troversy relates to the rates authorized to that he cannot be treated as a party to the be charged for the consumption of water. contract, has a right to sue to compel the Tue first question presented, however, is performance of the public duty which rests whether or not appellant, a citizen of the upon the holder of the franchise. We are city, has a right to maintain an action to not concerned at this time about whether compel those acting under the franchise to the proper remedy is in equity or at law comply with the terms thereof. Creditors by mandamus. No suit could be maintained of the water company instituted an action either at law or in equity against the corin the chancery court of Mississippi county, poration in the hands of the receiver withand a receiver was appointed by the court out first obtaining the consent of the court, to take charge of the plant and operate it and a citizen had a right to come into the during the pendency of the litigation. The court of equity where the affairs of the receiver filed a petition asking the court corporation are being administered through to construe the contract between the com- an agency of the court. pany and the city, with respect to the scale The controversy arises over the interpreof charges to be made against the consumers tation of the following clause of the conof water, and to give instructions to the tract regulating rates: received on that score. Appellant, who was “Any consumer whose annual rental under a citizen of the city, intervened, and asked the flat rate for any single connection equals that the contract be construed, and the re- $15 per annum may elect to have his service ceiver be ordered to carry out the contract metered. according to the court's construction of it.

Meter Rates. The court refused to place upon the con- 2,500 gallons or less per month, per tract the interpretation contended for by

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.30 appellant, and an appeal is prosecuted to 2,500 to 5,000 gal. per month, per this court.

.25 We are of the opinion that appellant, as 5,000 to 10,000 gal. per month, per a citizen and user of water in the city, has

.20 a right to maintain an action to compel Above 10,000 gal. per month, per the water company to comply with its con

.15 tract. There are authorities which clearly “The minimum amount of bill under one sustain that view, and we think they are rate shall not be less than the maximum correct. 1 Farnham, Waters, $ 160, B; under the preceding rate. The minimum Pond v. New Rochelle Water Co. 183 N. Y. meter rate to be 75¢ per month. The water 330, 1 L.R.A.(N.S.) 958, 76 N. E. 211, 5 company may make special contracts with Ann. Cas. 504; Robbins v. Bangor R. & private concerns for the use of water for Electric Co. 100 Me. 496, 1 L.R.A.(N.S.) unusual, special, or peculiar purposes or for 963, 62 Atl. 136. The New York court of purposes not specified in the foregoing table appeals, in the case cited above, based its of rates, but it will not be required to furconclusion on the ground that the contract nish any service connection of less than $6 was made for the benefit of the citizens of per annum.” 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

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other hand, it is contended by appellant that, wife alone a man's money deposited to the the contract should be construed as adopt. joint account of himself and wife is liable ing what is termed the “flat” scale, which to him therefor except so far as he may constitutes a division of customers into have ratified the checks or received the bene

fit of them. classes according to the amount of water consumed, and provides a rate for each

(March 23, 1915.) class. The court adopted appellee's contention, but we think that is an erroneous

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PPEAL by defendant from a judgment interpretation of the contract. Much plainer of the Circuit Court for Muhlenberg language could have been used if the framers County, overruling a motion for a of the franchise had intended what the trial in an action brought to recover the court interprets the language to mean. It amount alleged to have been deposited to could easily have been stated that the rate the joint credit of plaintiffs in defendant's of 30 cents per 1,000 should be charged for bank, and which it refused to pay. Affirmed. the first 2,500 gallons, and the lower rates The facts are stated in the opinion. for the excess, on up to the maximum; but, Messrs. Walker Wilkins and O'Rear & instead of that, the language bas, we think, Williams for appellant. been employed which means quite another Messrs. H. N. Lukins and Miller & thing. If that was the correct view, no Sandidge, for appellees: meaning whatever could be given to the If several persons make a deposit to clause which provides for minimum their joint credit in bank, it must have amount under each classification of rates. the signature of all of them appended to In other words, if the framers of the city the check before paying it. ordinance had intended it to mean that 2 Bolles, Bkg. p. 593; Morse, Banks & Bkg. such a rate should be charged up to a cer- § 435; 2 Dan. Neg. Inst. § 1612; Coote v. tain amount, and another rate for the ex- Bank of United States, 3 Cranch, C. C. 50, cess, it would have been useless to have Fed. Cas. No. 3,203; Tompkins v. McGinn, prescribed a minimum rate on each separate

Tex. Civ. App. 85 S. W. 452; Deniclassification. When the whole of this scale gan v. Hibernia Sav. & L. Soc. 127 Cal. of rates is read together, we are convinced | 137, 59 Pac. 389; Columbia Finance & that it means what the appellant contends T. Co. v. First Nat. Bank, 116 Ky. 374, for,--that is to say, the flat scale, which 76 S. W. 156; Neiman v. Beacon Trust divides the customers into classes according Co. 170 Mass. 452, 64 Am. St. Rep. 315, to the quantity of water used per month,- 49 N. E. 748. and that the consumers are entitled to have The money in controversy was in Blandwater furnished according to the rates fixed ford's hands, as agent, being held by him for the class within which each falls.

for Sam Leachman, which fact was known The decree is therefore reversed, and the by the cashier of the bank. The bank cause remanded, with directions to enter a would not be excused even if the mone; decree in accordance with this opinion. was deposited by him, at the instance of

the cashier, to the credit of Lizzie Leach. man.

Duckett v. National Mechanics' Bank, KENTUCKY COURT OF APPEALS.

86 Md. 400, 39 L.R.A. 84, 63 Am. St. GISH BANKING COMPANY, Appt.,

Rep. 513, 38 Atl. 983; Munnerlyn v. Au

gusta Sav. Bank, 88 Ga. 333, 30 Am. St. SAM LEACHMAN'S ADMINISTRATOR Rep. 159, 14 S. E. 554; State Nat. Bank et al.

v. Reilly, 124 Ill. 464, 14 N. E. 657; Essex

County v. Newark City Nat. Bank, 48 (163 Ky. 720, 174 S. W. 492.)

N. J. Eq. 51, 21 Atl. 185; Walker v. Bank

Manhattan Bank, 25 Fed. 255; 1 Morse, joint account - payment of in. dividual checks.

Banks & Bkg. $ 317; Swift v. Williams, A bank which pays upon the checks of the 68 Md. 237, 11 Atl. 835. Note. - Banks: payment of money de- / agreement with surety as to custody or conposited on joint account.

trol of trust funds, see the note to Fidelity This note does not include questions & D. Co. y. Butler, 16 L.R.A. (N.S.) 994. arising upon the death of one of two or more

Generally as to liability of coexecutor for depositors, nor cases of deposits by public default of one permitted to manage estate

, officers. Deposits by partnerships are also see the note to Cheever v. Ellis, ii L.R.A. excluded as involving the general agency of (N.S.) 296. partners in the use of the firm name.

In general. Violations of agreements to pay out trust Withdrawals from a joint deposit in bank funds only on the assent of the trustee's require the authority of all the depositors. surety are not included. For validity of GISH BKg. Co. v. LEACHMAN; Columbia L.R.A.1915D.

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Hurt, J., delivered the opinion of the four months, until the year 1913. In the court:

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, Samuel Leachman entered intɔ man owned a house and lot in the town, contract with C. H. Blandford & Company, which was conveyed to him by deed on

real estate agents in Greenville, to proMay 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 mort.

sale. 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 hir 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. checks of the receiver, although aware of the

Thus, in Dixon's Case, supra, it was held order, it is liable for the money so paid out that where a banker holds a joint deposit and misappropriated by the receiver. for three persons, which, by the agreement, American Nat. Bank v. Fidelity & D. Co. requires the three persons to draw it, and 129 Ga. 126, 58 S. E. 867, 12 Ann. Cas. 666, one of the depositors obtains the money by dictum, as the remedy against the bank had securing others to personate his codeposit- been lost by the statute of limitations. ors, he commits a fraud on the banker.

In Columbia Finance & T. Co. v. First extent of liability where payment is made Nat. Bank, 116 Ky. 374, 76 S. W. 156, cited

to one joint depositor, and quoted in Gish Bio. Co. v. LEACHMAN, the bank, on the direction of one of It is the extent of the interest of the the three depositors, had appropriated part wronged depositor at the time of the withof the deposit to the payment of a debt of drawal which determines the amount of liathat depositor to it.'

bility of the bank which has paid out the In Mulcahy v. Devlin, 2 N. Y. City Ct. joint deposit on the order of the other de. Rep. 218, the court observed that if an ac. positor. Thus, where two persons made a count be in the name of "A or B,” on notice joint deposit in a bank which agreed not to of one of them ot to pay the other the bank pay any part thereof except upon the joint may interplead, as such a payment after check of both depositors, and a few days such notice would mean liability for the later the bank, on the representation of one amount belonging to the notifying party. of the depositors that she had become the

But in Carr v. Fidelity Bank, 126 N. C. owner of the whole deposit, paid her the en186, 35 S. E. 246, where the agent of two tire amount thereof, the bank was held tenants in common deposited their rents liable to the other depositor for his interest under the name of “A and B,” and one in the deposit at the time of its withdrawal. of such tenants in common drew most He, as a matter of fact, owned one half of of the money out by a check signed “A the deposit when made and three fourths at and B” it was held that the bank was not the time of the withdrawal, but the bank liable, as the form of the account was was not aware at the time of the deposit of that of a partnership, and therefore one the respective rights of the parties, and party had the right to draw it out by check made no inquiry. Veiman v. Beacon Trust signed in this form.

Co. 170 Mass. 452, 64 Am. St. Rep. 315, 49 Similarly, when checks require a counter N. E. 748. signature, the bank is liable if it pays without it.

Trustees. Thus, where a partnership notified a bank not to pay its checks unless they were Generally speaking, money deposited with countersigned by its bookkeeper, and the a bank to the credit of more than one trustee bank nevertheless paid certain checks with cannot be lawfully withdrawn without the out being so countersigned, it was held that order of all the trustees. Swift v. Williams, the bank, suing for an overdraft, could not infra. recover the amount of these checks without Thus in Innes v. Stephenson, 1 Moody & showing that the firm received the benefit of R. 145, it was held that bankers paying the payment.

Gladstone Exch. Bank v. money on the signature of one assignee in Keating, 94 Mich. 429, 53 N. W. 1110. bankruptcy and on the forged signature of

Where a bank in which receiver de the other are liable for the money.

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