on the defendants as a manufacturer. Sieracki v. Seas Shipping Co., supra, 149 F.2d at page 100. Here there is no allegation that the Pittsburgh Coke and Chemical Company should be held liable as a manufacturer of this car.
The railway argues that indemnity is available to them if the third party plaintiff, Pittsburgh Coke, could be liable directly to the original plaintiff, Cush. In their complaint, they have not alleged any facts that would indicate wherein there might be liability between Cush and Pittsburgh Coke. There is no allegation that Pittsburgh Coke is a common carrier engaged in interstate commerce so as to come within the responsibility of the Safety Appliance Act or the Federal Employers' Liability Act, and as we have previously pointed out there were no allegations to bring Pittsburgh Coke within what might be called the common law rules of liability.
The Restatement of Restitution, § 93, Comment (e) points out that there might be a contract between the supplier and the person supplied in which case the latter would have an action for breach of contract if the thing supplied were not in accordance with the terms of the contract. Even though the supplier was not negligent and would not be subject to liability to anyone. There was in this case an allegation that a contract existed between Pittsburgh Coke and Shenango wherein Pittsburgh Coke agreed with Shenango that it would undertake to maintain and inspect the railroad car. The railroad now claims that it is a beneficiary under the contract and, therefore, is entitled to indemnity as a third party beneficiary.
'Third persons beneficiaries under a contract although not parties to it, may be divided into three classes: (1) Such person is a donee beneficiary if the purpose of the promisee in obtaining the promise of all or part of the performance thereof, is to make a gift to the beneficiary, or to confer upon him a right against the promisor to some performance neither due (not supposed) or asserted to be due from the promisee to the beneficiary; (2) such person is a creditor beneficiary if no intention to make a gift appears from the terms of the promise, and performance of the promise will satisfy an actual (or supposed) or asserted duty of the promisee to the beneficiary; (3) such person is an incidental beneficiary if the benefits to him are merely incidental to the performance of the promise and if he is neither a donee beneficiary nor a creditor beneficiary.' Vol. II, Williston on Contracts, § 356. See also Restatement, Contracts, § 133.
There is no allegation by P.C. & Y. Railway that would make them a donee beneficiary or a creditor beneficiary in respect to the contract between Pittsburgh Coke and Shenango. For the purpose of disposing of this motion and the rights of P.C. & Y. against Pittsburgh Coke, assuming that Cush could recover from P.C. & Y. Railway because of a violation of the Safety Appliance Act and that P.C. & Y. Railway received the equipment from Shenango with a defect in the equipment which contributed to the accident and further assuming that P.C. & Y. can sue Shenango, and assuming that P.C. & Y. Railway could recover against Shenango because of this defect in the equipment which contributed to the accident, and assuming further the existence of a contract between Shenango and P.C. & Y. Railway wherein P.C. & Y. Railway agreed with Shenango to maintain the equipment which contributed to the accident, and further assuming that Pittsburgh Coke breached this agreement and failed to maintain the equipment, does such a breach make Pittsburgh Coke liable to P.C. & Y. Railway?
From what we have previously stated, it appears that Pittsburgh Coke is neither a creditor nor a donee beneficiary of the contract between Shenango and Pittsburgh Coke. Therefore, its rights are only those of an incidental beneficiary and under the Restatement of Contracts, § 147, 'An incidental beneficiary acquires by virtue of the promise no right against the promisor or the promisee.' Therefore, P.C. & Y. Railway, being only an incidental beneficiary of the contract between Shenango and Pittsburgh Coke, it has no rights under the contract which it can enforce. See also Vol. II, Williston on Contracts, § 402 and § 403. Therefore, Pittsburgh Coke's motion to dismiss the third party complaint filed against it should be granted for P.C. & Y. Railway has failed to state a claim against Pittsburgh Coke upon which relief can be granted.
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