6 Div. 165.
May 15, 1924.
Appeal from Circuit Court, Walker County; R. L. Blanton. Judge.
Bankhead Bankhead, of Jasper, for appellant.
Respondent is a stranger to the contract and cannot recover under it. Lovejoy v. Bessemer Co., 146 Ala. 374, 41 So. 76, 6 L.R.A. (N.S.) 429. 9 Ann. Cas. 1068; House v. Houston W. W. Co., 88 Tex. 233, 31 S.W. 179, 28 L.R.A. 532; Cleburn Water Co. v. Cleburne, 13 Tex. Civ. App. 141, 35 S.W. 733. Where an action at law will not lie on a contract, equity will not decree its specific performance. Kent v. Dean, 128 Ala. 600, 30 So. 543; Comer v. Bankhead, 70 Ala. 492.
Curtis, Pennington Pou, of Jasper, for appellee.
The complainant had the right to amend his bill and make the city the complainant for his use. Code 1907, § 2490; Cowan v. Campbell, 131 Ala. 211, 31 So. 429; Alabama Power Co. v. Hamilton, 201 Ala. 62, 77 So. 356; Smith v. Yearwood, 197 Ala. 680, 73 So. 384. It was not necessary that the nominal complainant consent to the use of its name. Ex parte Randall, 149 Ala. 640, 42 So. 870. A water company may be compelled to perform its contract to furnish service. 27 R. C. L. 1410.
The contract involved was between the water company and the city of Jasper, for the benefit of the citizens and taxpayers. The city could no doubt maintain the present bill in its own name for the benefit of its citizens and taxpayers; this right, however, on the part of the city, would not preclude a citizen or taxpayer from resorting to the courts for the negative means of preventing the violation of a public duty arising out of the contract, by an injunction, when he has a particular and direct interest in the violation of said duty by the respondent. He can no doubt do this in his own name; the relief sought being the enforcement of a public duty rather than the specific enforcement of the contract, generally speaking.
We see no impropriety, however, in the amendment, making the city a nominal party complainant, as the complainant is not a party or privy to the contract, though made by the city for the benefit of himself and other citizens and property owners. Section 2490 of the Code of 1907; Cowan v. Campbell, 131 Ala. 211, 31 So. 429; Alabama Power Co. v. Hamilton, 201 Ala. 62, 77 So. 356; Smith v. Yearwood, 197 Ala. 682, 73 So. 384.
This he could do, with or without the consent of the city, and the remedy of the city is to require security for cost by application to the court, but which is of no concern to the appellant. Ex parte Randall, 149 Ala. 640, 42 So. 870. The amendment making the city the nominal complainant did not work an entire change of parties. Cain was still the real, as he had been before the sole and real, party complainant. Cowan v. Campbell, 131 Ala. 211, 31 So. 429.
Under the terms of the contract:
"The water company agrees that all extensions of cast iron pipe to the present system of mains shall be 6 inches in diameter or larger, provided the connection can be made with 6-inch pipe."
The proof in this case shows that a 6-inch connection can be made by the main in question at a small cost to the company, notwithstanding one of the connections contemplated by it is a 4-inch main or pipe. In other words, while it may be easier and a little cheaper to connect the present main at one end with a 4-inch main or pipe, the proof shows — that is, the weight of the evidence — that it is feasible to make a 6-inch connection at a cost of not exceeding $150, and thereby comply with the terms of the contract, which will prove a material benefit to the property owners along said main, especially in case of fire.
True, this complainant is not such a privy to the contract as would enable him to maintain a suit for property destroyed by fire by reason of the water company violating the contract with the city. Lovejoy v. Bessemer, 146 Ala. 374, 41 So. 76, 6 L.R.A. (N.S.) 429, 9 Ann. Cas. 1068. But he has a particular and direct interest in the main in question, different from the general public, and can maintain an appropriate action to compel the company to perform a duty owing him under its franchise. Pond v. New Rochelle Water Co., 183 N.Y. 330, 76 N.E. 211, 1 L.R.A. (N., S.) 958, 5 Ann. Cas. 504; Robbins v. Bangor Co., 100 Me. 496, 62 A. 136, 1 L.R.A. (N.S.) 963.
It is, of course, well settled by the decisions of this court that a bill for specific performance cannot be maintained which seeks to have the court regulate and control continuous duties extending over a series of years and involving personal skill and labor. This, however, is not a bill for the specific performance of the contract, strictly speaking, but is one rather by the negative means of injunction of enforcing the performance of a public duty; that is, to prevent the laying of a 4-inch main, instead of a 6-inch one, as it was the respondent's duty to do under the terms of its contract. Bienville Water Co. v. City of Mobile, 112 Ala. 260, 20 So. 742, 33 L.R.A. 59, 57 Am. St. Rep. 28.
It may be true that the main in question had been laid and connected before the writ of injunction was served, but the complainant was protesting at the time, and the writ was served before the work was finally completed, as the joints had not been sealed or made leakage proof, and the excavation had not been filled, and we do not think that the slight delay in the service of the writ has worked a case of hardship or oppression. We do not regard the cases of Kent v. Dean, 128 Ala. 600, 30 So. 543, and Comer v. Bankhead, 70 Ala. 493, as opposed to the present holding, or as bearing upon the present question.
The trial court will not be reversed for failing to sustain respondent's motion to increase the injunction bond, as no proof was offered to establish the insufficiency of same. Moreover, since we hold that the injunction was properly issued, the amount of the bond can be of no detriment to the appellant.
The decree of the circuit court is affirmed.
SOMERVILLE, GARDNER, and THOMAS, JJ., concur.