FCX, Inc. v. Bailey

BROCK, Judge. Appellants (Bailey), as third-party plaintiffs, allege in substance that: (1) the sows involved in the FCX complaint were purchased by FCX from Southern, (2) Southern breached [151] its agreement with FCX, and (3) Southern was fully aware of the agreement between FCX and Bailey. Upon these allegations, Bailey concludes that they are entitled to recover from Southern as third-party beneficiaries of the agreement between Southern and FCX. “If the contract was not made for the benefit of the third party, he has no cause of action upon the contract to enforce it, or sue for its breach, [citations]. The real test is said to be whether the contracting parties intended that a third person should receive a benefit which might be enforced in the courts, [citations].” Products Corp. v. Sanders, 264 N.C. 234, 141 S.E. 2d 329. G.S. 1A-1, Rule 8, requires that a pleading shall contain a plain statement of the claim sufficiently particular to give the court and the parties notice of the transactions, occurrences, or series of the transactions or occurrences, intended to be proved showing that the pleader is entitled to relief. Nowhere in the third-party complaint is there a statement which gives notice of transactions or occurrences from which the courts can reasonably conclude that Bailey has a claim against Southern on any legal theory. Bailey’s allegation of the mere conclusion that they are third-party beneficiaries is not sufficient. We note that in undertaking to allege a breach by Southern of its contract with FCX, Bailey incorporates by reference their allegations of breach by FCX of its contract with Bailey. G.S. 1A-1, Rule 10(c) permits an incorporation by reference of statements made in other parts of a pleading. However, counsel should be careful to ascertain that the prior statement will properly express the intent of the immediate paragraph into which the prior statement is incorporated by reference. In the present case, Bailey alleges specific breaches by FCX of its contract with Bailey; but, when these allegations are incorporated verbatim into the paragraph in which Bailey undertakes to allege a breach by Southern of its contract with FCX, it creates a problem of interpolation and guesswork as to what Bailey’s allegations against Southern really are. Each of the allegations refers to delivery of sows to Bailey, representations to Bailey, or representations by FCX. In order for the allegations to have some meaning against Southern, it seems they would need to refer to delivery of sows to FCX, representations to FCX, or representations by Southern. G.S. 1A-1, Rule 8(f) provides: [152] “All pleadings shall be so construed as to do substantial justice.” However, in giving a liberal construction the courts should not engage in judicial amending or rewriting of pleadings. The order dismissing the third-party action is affirmed. Judges Hedrick and Vaughn concur.