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Sisney v. Reisch - 2008 S.D. 72, 754 N.W.2d 813


Whenever two parties enter into an agreement that appears to have been made expressly for the benefit of a third party, and such agreement has a good and sufficient consideration, the agreement itself creates all the privity there need be between the person for whose benefit the agreement was entered into and the party assuming the obligation, and an action at law should lie regardless of whether there was any obligation existing between the other party to the agreement and the third party. But, before the third party can adopt the agreement entered into and recover thereon, he must show clearly that it was entered into with the intent on the part of the parties thereto that such third party should be benefited thereby.


An inmate entered into a settlement agreement under which the department of corrections agreed to provide a kosher diet to all Jewish inmates who requested it, including prepackaged meals which were certified kosher for noon and evening meals. The prison eventually quit serving the prepackaged kosher meals and began serving a new kosher diet prepared and cooked in the prison kitchen. Plaintiff, another inmate, filed suit against defendants, the secretary of the department and the director of prison operations, in the trial court, alleging that he was entitled to kosher meals under a prior settlement. The trial court dismissed the complaint for failure to state a claim, and the inmate appealed. The state supreme court reversed the grant.


Did the trial court err in dismissing plaintiff’s claim of inference that defendants were responsible for enforcing prior agreement of providing kosher diet to all Jewish inmates who requested it, because it contained "no factual assertions supporting an inference that it was the defendants' responsibility to carry out that agreement”?




Plaintiff inmate was entitled to the inference that defendant secretary and director were responsible for enforcing the prior agreement. The agreement clearly expressed an intent to benefit all members of a class of Jewish inmates who requested kosher meals. Even if defendants had sovereign immunity, it was waived to the extent the State entered into a contract and a party or third-party beneficiary sought to enforce the contract.

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