Appeal by plaintiff from Godwin, Judge. Judgment entered 9 October 1978 in Superior Court, Wake County. Heard in the Court of Appeals on 27 September 1979.
Hedrick, Judge. Judges Clark and Martin (Harry C.) concur.
Plaintiff assigns as error the order dismissing, pursuant to Rule 12(b)(6), G.S. § 1A-1, both its claims for relief. The sufficiency of a claim to withstand a motion to dismiss is tested by its success or failure in setting out a state of facts which, when liberally considered, would entitle plaintiff to some relief. If it appears to a certainty that no state of facts which could be proved in support of the claim would so entitle plaintiff, the complaint should be dismissed. 2A Moore's Federal Practice § 12.08 (1979). Accord, Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970); see also Kelly Page 447} v. Briles, 35 N.C. App. 714, 242 S.E.2d 883 (1978). Reviewing the instant case in light of this standard, we find, for the following reasons, that the plaintiff has failed to demonstrate any conceivable factual basis to support either of its claims and, therefore, the complaint was properly dismissed.
Plaintiff has argued, first, that it was a "third-party beneficiary" of the "Turnkey" contract between the Housing Authority and DWC, and, as such, that it is entitled to recover from both these parties for their breach in failing to require AAA to obtain a payment bond. Relying upon the New York case of Strong v. American Fence Construction Co., 245 N.Y. 48, 156 N.E. 92 (1927), plaintiff bases this argument upon its conviction that the bond requirement was written into this contract for the direct benefit of this plaintiff. Although we find plaintiff's position persuasive, we must reject its argument since we are convinced, to the contrary, that plaintiff was a "mere incidental beneficiary" of the contract between the Housing Authority and DWC. 3 Strong's N.C. Index 3d Contracts § 14 (1976).
The primary premise behind third-party beneficiary law is simply stated: if two parties enter into a contract with the intention, express or implied, of benefitting a third party, such party may maintain an action to enforce the contract, and may recover for its breach, even though the third party is not a party to the contract. Strong's N.C. Index, supra; see also 4 Corbin, Contracts § 774 (1951). Application of the principle, however, is not so simple. Thus, to aid analysis of a given factual situation, these third parties have been described as being either donee or creditor beneficiaries, and, "it is possible to say that the only third parties who have legal rights are the donees and the creditors of the promisee." Corbin, supra at § 779C. Accord, Vogel v. Reed Supply Co., 277 N.C. 119, 177 S.E.2d 273 (1970). Little, if any, discussion is merited in pointing out that plaintiff could not prevail as a "donee" beneficiary since, in order to so qualify, the promisee (here the Housing Authority) must express an intention and purpose "to confer a benefit upon [the third party] as a gift in the shape of the promised performance." Corbin, supra at § 774. [Emphasis added.] Even plaintiff does not contend that such was the case here.
On the other hand, for plaintiff to qualify as a "creditor" beneficiary, it must appear that the promisee has contemplated
"the present or future existence of a duty or liability to a third party and [has entered] into the contract with the expressed intent that the performance contracted for is to satisfy and discharge that duty or liability . . . ." Corbin, supra at § 787. Without doubt, had a bond been obtained in the case at bar, plaintiff would have been a creditor beneficiary of the promise given by the surety to the general contractor (promisee), DWC, and would have been entitled to maintain an action against and recover from the surety (promisor). Id. at §§ 798-803; 10 Strong's N.C. Index 3d, Principal and Surety, §§ 9, 9.1 (1977); RGK, Inc. v. United States Fidelity & Guaranty Co., 292 N.C. 668, 235 S.E.2d 234 (1977). A different question is presented, however, when the "promise" alleged to ensure such a result is merely a bald contractual provision that such a surety undertaking be secured. In other words, the performance of the contract between the Housing Authority and DWC was to be rendered exclusively in fulfillment of DWC's obligations to the Housing Authority. Moreover, DWC's performance could take place in full without plaintiff's receiving any benefit whatsoever. See Corbin, supra at § 779D. Nothing in the record before us suggests that the promisee-Housing Authority exacted from DWC the promise to obtain bonds with the expressed intent to directly benefit third parties such as plaintiff. Contrarily, any benefit derived therefrom would necessarily accrue indirectly, that is, through the subsequent undertaking of the general contractor when it either purchased bonds itself from a surety or contracted with its subcontractors to do so. We hold that the plaintiff herein was a mere incidental beneficiary of the contract at issue and, therefore, could not recover for its breach. Thus, the trial court properly dismissed plaintiff's claim predicated on this theory.
By way of a second claim for relief, plaintiff argues that it is entitled to recover directly from both the Housing Authority and DWC by virtue of former G.S. § 44-14 (repealed by N.C. Session Laws, c. 1194, s. 6, 1973, effective 1 September 1974) which provided materially as follows:
Every county, city, town or other municipal corporation which lets a contract for the building, repairing or altering any building, public road, or street, shall require the contractor for such work . . . to execute bond with one or more solvent sureties before beginning any work under said contract,
payable to said county, city, town or other municipal corporation, and conditioned for the payment of all labor done on and material and supplies furnished for the said work under a contract or agreement made directly with the principal contractor or subcontractor . . . . If the official of the said county, city, town or other municipal corporation, whose duty it is to take said bond, fails to require the said bond herein provided to be given, he is guilty of a misdemeanor. . . .
Since laborers and material furnishers can acquire no liens on public construction projects, Griffin Manufacturing Co. v. Bray, 193 N.C. 350, 137 S.E. 151 (1927); Robinson Manufacturing Co. v. Blaylock, 192 N.C. 407, 135 S.E. 136 (1926), the purpose of the statute was to give such laborers and materialmen "a substantial equivalent to the lien given laborers and materialmen engaged in private construction. The surety on the bond [was], for practical purposes, the substitute for the lien." American Bridge Division United States Steel Corp. v. Brinkley, 255 N.C. 162, 164, 120 S.E.2d 529, 531 (1961). Plaintiff advances an appealing argument that, because the statute's intended purpose was to protect laborers and material suppliers on public works projects, Owsley v. Henderson, 228 N.C. 224, 45 S.E.2d 263 (1947), then "our courts should permit recovery by a material supplier injured" when the municipal corporation violates the statute by failing to enforce the contractor to obtain the requisite bonds. [Our emphasis.] However attractive the argument, we feel bound by the decisions of our Supreme Court holding that no civil liability attaches to either the municipal corporation or its officers for their failure to take the bond. Noland Co. v. Board of Trustees of Southern Pines School, 190 N.C. 250, 129 S.E. 577 (1925); Warner v. Halyburton, 187 N.C. 414, 121 S.E. 756 (1924). The sole remedy is prescribed by the statute itself: "If the official . . . whose duty it is to take said bond, fails to require the said bond herein provided to be given, he is guilty of a ...