It is this assignability exception to the privity of contract requirement that appellant invokes. In granting summary judgment in favor of appellee on its lack of privity defense, the trial court relied upon Stewart v. Gainesville Glass Co., 131 Ga. App. 747 ( 206 S.E.2d 857) (1974), aff'd 233 Ga. 578 ( 212 S.E.2d 377) (1975) and Tolar Constr. Co. v. GAF Corp., 154 Ga. App. 127 ( 267 S.E.2d 635) (1980), rev'd on other grounds 246 Ga. 411 ( 271 S.E.2d 811) (1980). Both of those cases involved warranties which were made in connection with the sale of goods.
The mere fact that he would benefit from performance of the agreement is not alone sufficient. Stewart v. Gainesville Glass Co., 131 Ga. App. 747, 752 ( 206 S.E.2d 857) (1974), affirmed 233 Ga. 578 ( 212 S.E.2d 377) (1975); McWhirter Material c. Co. v. Ga. Paper Stock Co., 118 Ga. App. 582, 583 (1) ( 164 S.E.2d 852) (1968)."
Nor may Weaver recover as an employee of a buyer. Regardless of the merits of the arguments for the abolition of privity (see dissenting opinion as to vertical privity in express warranties in Stewart v. Gainesville Glass Co., 233 Ga. 578 ( 212 S.E.2d 377)), it is still a requirement for breach of warranty actions in Georgia. Stewart v. Gainesville Glass Co., 131 Ga. App. 747 ( 206 S.E.2d 857), affirmed in 233 Ga. 578, supra; Chaffin v. Atlanta Coca Cola Bottling Co., 127 Ga. App. 619 ( 194 S.E.2d 513). Georgia courts have consistently refused to expand the class of those excepted from the horizontal privity requirement by Code Ann. § 109A-2-318, footnote supra, to include employees of the buyer, such as the plaintiff here. Parzini v. Center Chemical Co., 134 Ga. App. 414 (1) ( 214 S.E.2d 700); Verddier v. Neal Blun Co., 128 Ga. App. 321 ( 196 S.E.2d 469).
The mere fact that he would benefit from performance of the agreement is not alone sufficient. Stewart v. Gainesville Glass Co., 131 Ga. App. 747, 752 ( 206 S.E.2d 857) (1974), affirmed, 233 Ga. 578 ( 212 S.E.2d 377) (1975); McWhirter Material c. Co. v. Ga. Paper Stock Co., 118 Ga. App. 582, 583 (1) ( 164 S.E.2d 852) (1968). The contract in the instant case fails to meet this standard.
O.C.G.A. § 9-2-20 (b). For there to arise contractual duties to perform owed to a third party, it must appear from the contract that it was intended for the benefit of the third party by the contracting parties. Somers v. Avant, 244 Ga. 460, 463 ( 261 S.E.2d 334) (1979); Muldawer v. Stribling, 243 Ga. 673, 676 ( 256 S.E.2d 357) (1979); Stewart v. Gainesville Glass Co., 131 Ga. App. 747, 752-753 ( 206 S.E.2d 857) (1974), aff'd, 233 Ga. 578 ( 212 S.E.2d 377) (1975). In this case, the contract clearly indicates that parties not expressly named in the contract are to be effected by the contract as third party beneficaries.
6. Third Party Beneficiary. Under OCGA § 9-2-20 (b), a third-party beneficiary to a contract may sue in their own name to enforce the contract; however, the contract must expressly specify and identify the person as a third-party beneficiary to the contract. Miree v. United States, 242 Ga. 126, 135 (3) ( 249 S.E.2d 573) (1978); Backus v. Chilivis, 236 Ga. 500, 502 ( 224 S.E.2d 370) (1976); Stewart v. Gainesville Glass Co., 131 Ga. App. 747, 752-753 ( 206 S.E.2d 857) (1974), aff'd, 233 Ga. 578 ( 212 S.E.2d 377) (1975); see also Donalson v. Coca-Cola Co., 164 Ga. App. 712, 713-714 (2) ( 298 S.E.2d 25) (1982). The third-party beneficiary must be the intended beneficiary of the contract; the mere fact that a third-party would benefit incidentally from the performance of the contract is not alone sufficient to give such person standing to sue on the contract. Whitley v. Bryant, 198 Ga. 328 ( 31 S.E.2d 701) (1944); Culberson v. Fulton-DeKalb Hosp. Auth., 201 Ga. App. 347, 349 (1) ( 411 S.E.2d 75) (1991), overruled on other grounds, Lemonds v. Walton County Hosp. Auth., 212 Ga. App. 369 ( 441 S.E.2d 821) (1994); Walls, Inc. v. Atlantic Realty Co., 186 Ga. App. 389, 391-392 (1) ( 367 S.E.2d 278) (1988); Bartley v. Augusta Country Club, 172 Ga. App. 289, 290 ( 322 S.E.2d 749) (1984); Southeast Grading v. City of Atlanta, 172 Ga. App. 798, 800 (1) ( 324 S.E.2d 776) (1984).
[Cit.]" Morgan v. Mar-Bel, Inc., 614 F. Supp. 438, 441 (N.D. Ga. 1985). See Stewart v. Gainesville Glass Co., 131 Ga. App. 747, 751 ( 206 S.E.2d 857) (1974), affirmed 233 Ga. 578 ( 212 S.E.2d 377) (1975); Lamb v. Ga.-Pacific Corp., 194 Ga. App. 848, 850 (4) ( 392 S.E.2d 307) (1990). "By statute, the UCC warranties can only be made by a seller of goods and those warranties can only be extended either to the buyer or to those who have a specified relationship with the buyer.
We note initially that although the requirement of privity has been abolished for tort actions and actions against manufacturers of defective products brought by "any natural person who may use, consume, or reasonably be affected by the property and who suffers injury to his person or property . . .," OCGA § 51-1-11 (a) and (b) (1), no such change has been effected as to corporations damaged by defective products. Chem Tech argues that in Stewart v. Gainesville Glass, 131 Ga. App. 747 ( 206 S.E.2d 857) (1974), aff'd 233 Ga. 578 ( 212 S.E.2d 377) (1975), this court held that an express warranty runs only to the original purchaser except where it appears "that both parties to the contract intended that a third person should be the beneficiary," id. at 753, and that the facts sub judice fit into the exception, rather than the rule, in Stewart. However, nothing in the contract between Mueller and Dalton obligates Mueller to render any performance whatsoever to Chem Tech — only to Dalton.
2. As support for its conclusion that a claim for breach of warranty arising from the sale of personal property is not assignable by the purchaser, the court relied upon Stewart v. Gainesville Glass Co., 131 Ga. App. 747 ( 206 S.E.2d 857) (1974), aff'd 233 Ga. 578 ( 212 S.E.2d 377) (1975). However, that case does not hold that a claim for breach of warranty may not be assigned but holds merely that the warranty itself may not be assigned.
The mere fact that the plaintiff would benefit from the performance of the agreement is not alone sufficient. See Stewart v. Gainesville Glass Co., 131 Ga. App. 747, 752 ( 206 S.E.2d 857) affd. s.c. 233 Ga. 578 ( 212 S.E.2d 377); McWhirter Material Handling Co. v. Georgia Paper Stock Co., 118 Ga. App. 582, 583-584 (1) ( 164 S.E.2d 852); Backus v. Chilivis, 236 Ga. 500, 502 ( 224 S.E.2d 370); LDH Properties v. Morgan Guaranty Trust Co., 145 Ga. App. 132, 133-134 ( 243 S.E.2d 278). 3. The preliminary hearing here involving several defenses, including a motion to dismiss for failure to state a claim based upon the pleadings and the admissions, having been heard and determined under Code Ann. § 81A-112 (d) (Ga. L. 1966, pp. 609, 622; 1967, pp. 226, 231; 1968, pp. 1104, 1106; 1972, pp. 689, 692, 693), the trial court did not err in dismissing the amended complaint.