dissenting. 1. The majority opinion holds that the plaintiff, Georgia Paper Stock Co., Inc., is not such a beneficiary of the contract between DeKalb County and McWhirter Material Handling Co., Inc. as would allow it to maintain this suit under the provisions of Code § 3-108 as amended by the Act of 1949. I disagree and dissent.
The original contract between the plaintiff and DeKalb County created certain obligations on the part of the county, one of which was to deliver all corrugated boxes collected by its own trucks to the plaintiff and if possible all those boxes collected by its independent contractors or agents for certain stipulated prices per ton. Subsequent to this contract, the county called for bids from contractors to collect trash, including boxes, in certain areas of the county. In recognition of its *585obligation to the plaintiff under the original contract, the invitation to bid contained the following paragraph:
“17. DeKalb County and Georgia Paper Stock Company have entered into a contract whereby Georgia Paper Stock Company has agreed to buy all cardboard picked up by the county trucks or their agents. The successful low bidder shall arrange with the Chief of the Sanitation Division to place containers at designated spots and to deliver such material at the designated place. All monies realized from this venture shall be divided 60% for the county and 40% for the contractor.”
By its own provisions, the invitation to bid became a part of the contract between the county and the low bidder, McWhirter, and was as binding on the parties as if spelled out in the contract document itself. This paragraph 17 makes it abundantly clear that both the county and McWhirter recognized the rights of the plaintiff under the original contract and that the obligation of the county in respect thereto was assumed by McWhirter under the terms of their contract. The plaintiff therefore was expressly recognized as a third party beneficiary of the contract and as such clearly should be able to maintain an action for breach of contract by the subcontractor McWhirter.
Since the contract documents named the plaintiff and referred to its contract with the county, as set forth above, we cannot see the basis for the statement in the majority opinion to the effect that the contract between the county and McWhirter does not name or refer to the plaintiff and that plaintiff is not a contractual beneficiary. The reverse seems to be true, and this pierces the very basis on which the majority opinion rests.
It is clear that the second contractor, McWhirter, as a promisor under the second contract for benefits flowing to the plaintiff under the terms of the first contract incorporated in the second contract, incurs no obligation greater than the promise of the county, i.e., to cause the delivery if possible of those boxes which it collected, with liability limited to losses of the first contractor proximately resulting from the failure of the second contractor to deliver whatever it was reasonably possible to deliver. Giving effect to the 1949 amendment to Code § 3-108, and liberally construing the petition in a fav*586orable light, as is appropriate under Code Ann. § 81A-108 (f) supra, the allegations are sufficient to allow the first contractor to present evidence as to whether the second contractor, in performing its contract with the county, took such steps as were reasonably necessary to deliver, if possible, those boxes which it collected to the first contractor, as well as evidence of any losses caused by a breach of the obligation. Accordingly, we think that the petition in this respect states a claim against the second contractor and that the learned trial judge did not err in refusing to dismiss the claim against this defendant, and in refusing to grant judgment on the pleadings in this respect.
2. Whether or not the surety is excused from liability under the express provisions of the bond is not passed upon since the majority opinion releases the defendant surety on the basis of the non-liability of its principal.
I am authorized to state that Chief Judge Felton and Judges Hall and Deen concur in this dissent.