Opinion of the Court-Leonard, C. J.

tional discharge of the pistol they must acquit the defendant; but the following instruction was also given:

"You are instructed that in the trial of all indictments, complaints, and other proceedings against. persons charged with the commission of crimes or offenses, the person so charged shall, at his own request, but not otherwise, be deemed a competent witness; the credit to be given to his testimony being left solely to the jury, under the instructions of the court.

"The foregoing is a copy of the law of this state giving defendants the privilege of testifying in their own behalf; and from it you will observe that you are the sole judges of the degree of credibility which such testimony shall receive; and you are instructed that you are at liberty to believe all the testimony of the defendant, or you are at liberty to disbelieve the whole thereof, or you may believe a portion of his testimony and disbelieve a portion. In all cases, jurors should receive such testimony with great caution—for when one is being tried for a capital offense the temptation to pervert or distort the facts in favor of himself is very great."

In our opinion, the recent decision of this court in the case of The State v. Johnson and O'Brien, is decisive of this appeal, and that on principle, as well as upon the authority of that case, the last portion of the instruction quoted can not be upheld. Courts can not so charge a jury as to impress upon their minds that any witness has testified falsely. Jurors may be informed as to the matters to be considered in determining the credibility of witnesses, but they can not be instructed, directly or indirectly, that any witness has perverted or distorted the facts. And when a defendant in a criminal case makes himself a witness, he has the right to have his testimony received and considered according to the rules adopted in relation to other witnesses. The last part of the instruction under consideration advised the jury to look upon the testimony of defendant with suspicion because he was charged with a capital offense. An innocent person may be charged with crime. If so, his case is indeed a rare exception, if he is tempted to distort the facts, because truth will then serve him best.

Argument for Appellant.

We think, also, that the court should have disregarded the request of the jury for an instruction as to their rights and duties in recommending the defendant to the mercy of the court. The sole duty of the jury is to declare by their verdict whether the defendant is guilty or not guilty.

The judgment and order appealed from are reversed, and the cause is remanded for a new trial.

[No. 1,008.]

v.

G. W. G. FERRIS, APPELLANT, V. THE CARSON WATER COMPANY, RESPONDENT.

CONTRACT-DAMAGES FOR BREACH OF-PRIVITY-PROPERTY DESTROYED BY FIRE.

The owner of property which is destroyed by fire, can not maintain an action to recover damages from a water company, on the ground that the property was destroyed by the failure of the water company to furnish a supply of water as required by the terms of its contract with the town, there being no privity of contract between the parties to the action. IDEM-INTEREST IN PROPERTY MUST BE CERTAIN AND SUBSTANTIAL.-The owner of property destroyed by fire, upon assignment, sought to recover damages upon the ground that the municipality had such an interest in the property as to give it a right of action: Held, that the right of taxation vested in the municipality did not create an interest in the property but only an expectation dependent upon contingencies, and that this was too remote to be the foundation of a right of action.

APPEAL from the District Court of the Second Judicial District, Ormsby County.

The facts appear in the opinion.

N. Söderberg, for Appellant:

I. Defendant is estopped by the contract from denying the interest of the city in the property, or its authority to make the contract. Having made and ratified the contract and taken the benefits which it confers, defendant must also bear the obligations which it imposes. (Herman on Estoppels, secs. 467-471, 473, 474; Stevenson v. Newnham, 13 C. B. 302; Atkinson v. Newcastle and G. W. Co., 6 Ex.

Argument for Appellant.

(Law Rep.) 404; People v. Common Council of Utica, 65 Barb. 9, 21; Argenti v. San Francisco, 16 Cal. 255.)

II. The city. had an insurable interest in the property. It had a reasonable expectation of gain in the shape of taxes to be derived from the property which was destroyed. (3 Kent's Com., 3d ed., 275-278; May or Insurance, secs. 76, 102, 109; Bliss on Life Ins. 35-37; State v. Rhoades, 7 Nev. 434; Morrell v. Trenton Mut. Life and Fire Ins. Co., 10 Cush. 282.)

III. By the contract between the city and defendant the latter insured the property against loss by fires caused by its own failure to furnish water, or by its misconduct in preventing water from flowing to the hydrants. (Atkinson V. N. & G. W. Co., supra.)

IV. The measure of the city's damages is the value of the property destroyed through defendant's negligence. (Richmond v. Dubuque & S. C. R. R. Co., 26 Iowa, 191; Philadelphia, Wilmington etc. R. R. Co. v. Howard, 13 How. 308, 326, 343, 344; Hoy v. Gronoble, 34 Pa. St. 9; Hendricks v. Stewart, 1 Tenn. 476; Rodgers v. Mechanics' Ins. Co., 1 Story, 603; Lawson v. Price, 45 Md. 123; Sedg. on Dam. 106, (104), 112 (109), 115 (112), 116.)

V. Defendant's negligence was the natural and proximate cause of the injury. (3 Parsons on Contracts, 179; Milwaukee etc. R. R. Co. v. Kellogg, 94 U. S. 469.)

VI. The city's demand was assignable. (Burrill on Assignment, sec. 100, and cases cited.)

VII. The city was competent and authorized to act as the agent of its inhabitants. (Story on Agency (1874), sec. 7; People v. Com. Council of Utica, 65 Barb. 21.)

VIII. A third party may maintain an action on a contract made with another for his benefit. (1 Parsons on Contracts, 466 et seq.; 3 U. S. Dig. 524, sec. 2444; Alcalde v. Morales, 3 Nev. 132; Bristow et al. v. Lane et al., 21 Ill. 194.)

IX. Defendant owed a duty to the community and to plaintiff, to use reasonable care and diligence not to frustrate means in use to extinguish an existing fire. (Wharton on Negligence, 98; Mott v. Hudson R. R. Co., 8 Bosw. 355.)

Opinion of the Court-Belknap, J.

R. M. Clarke, for Respondent:

I. Neither the city nor appellant has an action against respondent for the value of premises destroyed. The city had no interest in the property destroyed as owner, nor had it any present interest of any kind. The mere right of future taxation can not lay the foundation to support a present demand of the kind in question.

II. The appellant had no action in his own right for respondent's failure to fulfill its contract with the city. He was not a party to that contract. He did not stand in privity with the city, and can not sue respondent upon a contract in which he had no legal interest. (Davis v. Clinton Water Works Co., 54 Iowa, 59; Kahl v. Love, 37 N. J. L. 5; Atkinson v. Newcastle etc. Water Co., L. R., 2 Ex. Div. 441; Nickerson v. Bridgeport Hydraulic Co., 46 Conn. 24; Vrooman v. Turner, 69 N. Y. 280; Wharton on Negligence, secs. 438, 440; Sher. & Redf. on Neg., sec. 54.)

By the Court, BELKNAP, J.:

The complaint in this case contains two counts, to each of which the defendant demurred generally. The demurrer was sustained by the district court, and the case comes before us upon an exception to this ruling. In one count it is alleged that the defendant entered into a contract with the town of Carson City, a municipal corporation, on behalf of and for the benefit of its inhabitants, to supply it with water for the extinguishment of fires. That for this purpose fire plugs were established at various places in the town, and, among other places, at a point within a convenient distance of plaintiff's building. That a fire occurred in premises adjoining plaintiff's, and by reason of the failure of defendant to keep the pipes connecting with the fire plugs charged with water under sufficient pressure, as was its duty under the contract, the fire communicated to plaintiff's building and destroyed it. That in consideration of the contract and of moneys paid thereunder by the town of Carson City to defendant, it became liable

Opinion of the Court-Belknap, J.

unto plaintiff for the damages arising from the neglect above mentioned.

The question presented by this count is whether, upon a breach of contract between the municipality and the water company, the plaintiff, whose property was destroyed through the failure of defendant to perform its obligation, has a right of action for damages.

It will be observed that plaintiff is not a party to the contract. It is a general rule of law that a stranger to a contract can not claim its benefits in an action upon it. An exception to the rule exists in favor of persons for whose benefit a contract has been made, and it is urged in support of the declaration that as this contract was made for the benefit of plaintiff and the other taxpayers and residents of the town, the case falls within the exception.

But a third person, not a party to a contract and for whose benefit it may have been made, does not in all cases have a right of action upon it. To entitle him thereto, there must be some privity between him and the promisee, and some obligation or duty owing from the latter to him, which would give him a legal or equitable claim to the benefit of the promisee or an equivalent from him personally. "A legal obligation or duty owing from the promisee to him" (the person for whose benefit the contract is made) "will so connect him with the transaction as to be a substitute for any privity with the promisor, or the consideration with the promisee, the obligation of the promisee furnishing an evidence of the interest of the latter to benefit him, and creating a privity by substitution with the promisor." (Trooman v. Turner, 69 N. Y. 284.)

Other exceptions doubtless exist, but the plaintiff's case is within none of them.

. The board of trustees of the town, in the exercise of a discretionary power conferred upon them by the legislature, contracted for a supply of water for the extinguishment of fires. The plaintiff, in common with the other residents of the town, enjoyed the advantages of this contract. He had an indirect interest in the performance of the contract by the water company, as had all of the property-holders of