(specially concurring).
In its opinion, the majority, citing Penney v. Bryant, 70 Neb. 127, 96 N.W. 1033, holds that venue of the action herein as against the Board of Commissioners of LeFlore County can not lie in Oklahoma County as “the liability, if any, of those defendants [i. e. the State Department of Highways, its director, Lyons, and the State Highway Commission] would be a ‘different and several’ one, rather than a ‘joint’ one, with the LeFlore County defendants.” The stated basis of this conclusion is that the cause of action alleged against the Board of County Commissioners “is one for interference with the performance of McKnight’s contract with another party * * * which constitutes *164a tort under certain circumstances,” while the cause of action stated against the other defendants “is more contractual, than tortious, in nature.”
I agree “that an action against two or more defendants jointly liable may be maintained against such defendants in any county that is proper venue for any one of the defendants.” Wray v. Garrett, 185 Old. 138, 90 P.2d 1050, 1051. (Emphasis added.) However, I disagree with the -majority’s, stated conclusion that the cause of action pleaded against the petitioner was tortious in nature and that the cause of action pleaded against certain other defendants was contractual in nature (as a basis for its finding that defendants were not alleged to have been jointly liable).
It is true that the contract herein for the construction of the farm-to-market projects was entered into by the Department of Highways and McKnight only. However, payment for the projects was to be from both federal funds available for the construction of farm-to-market and secondary roads and from certain taxes allocated by the State to various counties for the purpose of matching such federal funds. In accordance with what is apparently the regular procedure, the Board of County Commissioners of LeFlore County, by resolution, selected the projects on which it preferred to have certain of its allocated funds used and requested the State Highway Commission to concur in such selection. Upon that concurrence, the Department of Highways, which had such allocated funds in its custody, entered into a contract with McKnight for the construction of such projects. Under the regulations of the Department of Highways, such construction was supervised by the County’s engineer.
Under these circumstances, it is my opinion that although the State, through its Department of Highways, was the actual party to the contract as required by statute, the funds belonged to LeFlore County and such county is obviously the beneficiary of such contract. It is my further opinion that as the beneficiary, LeFlore County became an-implied party to the contract. In Equitable Life Assurance Society of United States v. Weightman, 61 Okl. 106, 160 P. 629, 631, L.R.A.1917B, 1210, we stated:
“ -+- * * When one person becomes the beneficiary of the contract of others, such beneficiary is an implied party to the agreement. Before he may accept the benefits of the contract, he must accept all of its implied, as well as express, obligations.”
As a party to the contract, the county could not hinder or prevent the performance by McKnight of his contractual obligations. If the county did so hinder or prevent performance as alleged, then it breached the contract and is liable for damages. 17 Am. Jur.2d Contracts § 442 ; 23 O.S.1961, §§ 21, 22. For these reasons, it is my opinion that the cause of action stated against the county was a contractual one.
However, in my view, there is another aspect which requires us to hold that the District Court of Oklahoma County does not have venue of the action herein.
It has already been noted that for venue to be in Oklahoma County, defendants must be jointly liable. As urged by respondent, which he must contend to avoid the doctrine of sovereign immunity, the State Department of Highways is a mere stakeholder in this action as it is simply holding the allocated funds from which payment for these projects will be made. As such mere stake-holder and without more, and in view of the allegations made in the trial court, it is difficult for one to perceive how the Department of Highways could be jointly liable with LeFlore County for a breach of such contract.
In his pleadings in the trial court, the respondent makes no allegations that the Department breached the contract. Rather, he takes the position that the Department, as it is holding certain funds belonging to LeFlore County which include the liquidated damages assessed against him for failure to finish the project in the required time, is a necessary party to the suit.
*165Such position on respondent s part, to my mind, in no way establishes the liability of the Department of Highways for a breach of contract. It may be true that it would be more convenient for respondent to have the stake-holder as a party, but I do not believe that the latter is necessary to the action. If respondent establishes a breach of the contract and obtains a judgment for damages against LeFlore County, the funds to which he is entitled could be obtained from the Department by Writ of Mandamus, 12 O.S.1961, § 1451 et seq., or other appropriate relief.
For these reasons, I concur specially.
I am authorized to state that McINER-NEY, J., concurs with the views herein expressed.