The opinion
BrowN, J.,
concurring in result: I recognize the fact that the overwhelming weight of authority, including that of the Supreme Court of the United States, is against the decisions of this Court in the Gorrell, *599 Fisher, and Jones cases, cited in the opinions in this case. But all three of those cases were decided and the opinions published before the contract in this case was entered into. Those decisions were well known to be the law of North Carolina when the franchise given to the defendant was applied for, and when it was agreed upon and its terms accepted.
Whether those eases were correctly decided or not, they were the accepted law of this State at that time, and upon well established principles entered into and formed a part of the contract under which the defendant operated, unless there is something to be found in the contract excluding such hypothesis.
In referring to this well settled rule of law, Mr. Justice Walker says,, in Hill v. R. R., 143 N. C., 576: “We adopted that rule in Long v. Walker, 105 N. C., 109, where it was held that a former adjudication of the Court in construing a statute or the organic law should stand, when it has been recognized for years, and in such case the principle settled or the meaning given to the statute becomes a rule for guidance in making-contracts, and also a rule of property, and that it should not be disturbed, even though the conclusion reached may not be satisfactory to the Court at the time the same matter is again presented.”
TJnder the decisions of this Court, the contract was made by the city for the benefit of its citizens, and they had a right to sue on it for a breach thereof.
It was perfectly competent for the defendant to have inserted a clause in the contract excluding such right or providing that the defendant would indemnify and hold harmless the city, or that the city only should sue.
It could easily have been made to - appear from the contract, if such was the agreement of the parties, that the defendant was dealing exclusively with the city, and was accountable only to it.
Taking this contract as a whole, there is nothing in it from which we can infer that tlie city alone must sue for its breach.