negotiable instrument. 12 It is frequently said that there is an exception to the general rule that an undisclosed principal may enforce a contract made on his behalf, where personal confidence was reposed by the other contracting party in the agent who contracts in his own name. 13 The matter is, however, more accurately expressed by saying that the party who contracted with the agent cannot be compelled either to give or to receive anything different from that for which he contracted with the agent. If the agent contracted apparently as principal to render services or perform an act personal in its nature, nobody but the agent can perform that act, and the party with whom he has contracted will not be bound to perform until he has received the agent's personal service.14 And within this principle pushed somewhat far it has been held that a contract by an agent to sell personalty apparently belonging to him is not fulfilled by an offer on the part of the principal to transfer the personalty in question, which in fact belonged to him.15 It seems possible, however, that the doctrine of undisclosed principal may, nevertheless, be applicable to such a contract. If the agent performs, or tenders performance 16 of the

12 See infra, §§ 296, 298. The doctrines of undisclosed principal are applicable to non-negotiable promissory notes. Garland v. Reynolds, 20 Me. 45; National Ins. Co. v. Allen, 116 Mass. 398; Everett v. Drew, 129 Mass. 150.

13 See Navarre Hotel Co. v. American Appraisal Co., 142 N. Y. S. 89, 156 App. Div. 795; Mechem on Agency (2d ed.), § 2067.

14 Sydney v. Mugford Printing &c. Co., 214 Fed. 841; Sullivan v. Shailer, 70 Conn. 733, 40 Atl. 1054; Cowan v. Curran, 216 Ill. 598, 75 N. E. 322; Shields v. Coyne, 148 Ia. 313, 127 N. W. 63, 29 L. R. A. (N. S.) 472; Moore v. Vulcanite Portland Cement Co., 121 N. Y. App. D. 667, 106 N. Y. S. 393; King v. Batterson, 13 R. I. 117.

15 New York Brokerage Co. v. Wharton, 143 Ia. 61, 119 N. W. 969; Winchester v. Howard, 97 Mass. 303, 93 Am. Dec. 93 (dictum). But see contra

Hawkins v. Windhorst, 87 Kan. 168, 123 Pac. 761.

16 It is said by Mechem, and his statement is repeated, e. g., in Birmingham Matinee Club v. McCarty, 152 Ala. 571, 44 So. 642, 13 L. R. A. (N. S.) 156, and in Pancoast v. Dinsmore, 105 Me. 471, 75 Atl. 43, 134 Am. St. 582, that the undisclosed principal will only be able to sue on such a contract if it is executed on the part of the agent; but if the performance is what was contracted for it is obviously immaterial whether the contract is unilateral or bilateral when made, if in the latter case the agent subsequently performs, ore ven tenders the correct performance; and if on the other hand, the performance actually rendered is not what was contracted for, e. g., if the fact that property transferred belonged to the principal instead of to the agent as supposed makes it a different performance, a transaction

personal services which he agreed to render, the principal should be able to recover from the other party if he then breaks the contract.17 Even if the obligation on the other side is also for personal services which can be rendered only to the agent, the principal should be able to sue if such services are not rendered to the agent. In determining whether the nature of the performance, which the other party to the contract undertakes, will be changed if performance is rendered to the principal, it is not material that the other party engaged to do something which he alone could do, but it is important if his engagement would be changed in character if rendered to any one other than the agent. A contract with the agent that his co-contractor should paint a landscape might be enforced by the principal though such a contract is personal on the part of the painter; but a contract to paint a portrait of the agent if enforced by the principal, can be enforced not as a contract to paint his own portrait but as a contract to paint the agent's portrait. It is sometimes said that the personal liability of the agent when relied upon by the other party makes the contract so personal as to make the doctrine of undisclosed principal inapplicable, 18 but there seems some misapprehension here. If the apparent principal in the transaction is the agent, and the contract is executory on his part, he will be liable whatever the nature of the contract in other respects may be. Another person's liability upon an executory promise can never be substituted without the promisee's consent for that which was agreed upon. 19 But it is a part of the doctrine of undisclosed principle that the agent always remains liable, and the other party to the contract secures as an addition or an alternative the responsibility of the principal. This addition, whether little or great, can certainly do no harm.20 Therefore, no quali

executed under a material mistake should be rescinded.

17 See cases in the preceding note, also Prichard v. Budd, 76 Fed. 710, 22 C. C. A. 504; Kelly Asphalt Block Co. v. Barber Asphalt Pav. Co., 136 N. Y. App. D. 22, 120 N. Y. S. 163. But see Walton v. Davis, 22 Cal. App. 456, 134 Pac. 795.

18 Mechem on Agency (2d ed.), § 2068; Cowan v. Curran, 216 Ill. 598, 75 N. E. 322; cf. Davidson v. Hurty, 116 Minn. 280, 133 N. W. 862, 39 L. R. A. (N. S.) 324.

19 See supra, § 80, infra, § 411.

20 Hawkins v. Windhorst, 87 Kans. 176, 178, 123 Pac. 761.

fication of the doctrine of undisclosed principal is necessary. All that need be borne in mind here as always, is that the party dealing with the agent cannot be compelled to give or receive anything different from that for which he bargained.21 And at least it is true, that if there is any qualification to the doctrine of undisclosed principal because of the personal nature of the contract, the qualification must be confined to cases where not simply the name of the principal, but the agency itself was undisclosed. If the party dealing with the agent knows that the latter is dealing on behalf of a principal, it must be assumed that the party so dealing, is willing that the principal should enforce the obligation.

§ 287. Rights and liabilities of the principal where the agency is disclosed but the principal not named.

Where, in making an informal contract, the fact of agency was disclosed but no principal was named, the principal is liable; 22 even though the plaintiff when making the contract

21 In Shields v. Coyne, 148 Ia. 313, 127 N. W. 63, 29 L. R. A. 472, a contract was made to lend an agent money on his note and mortgage. It was held that the principal could not enforce an obligation to lend money on his own note and mortgage, though the mortgage covered the agreed property. Here it will be observed that the execution of a specific instrument was contemplated,-the agent's note-and the party dealing with the agent could not be required to accept any different note. So in Birmingham Matinee Club v. McCarty, 152 Ala. 571, 44 So. 642, and Pancoast v. Dinsmore, 105 Me. 471, 75 Atl. 43, a contract by an agent to give a warranty deed was held not fulfilled by the tender of the principal's warranty deed. On the other hand, a contract with an agent to pay for property sold by the agent may be enforced by the undisclosed principal, since the obligation of the agent for the correct performance of his contract would not be lost by paying the price

to the principal. Rice, etc., Co. v. International Bank, 86 Ill. App. 136; Hawkins v. Windhorst, 87 Kans. 176, 123 Pac. 761. Such cases must be distinguished from offers to contract made to an agent or assignor but accepted by a principal or assignee. Only the offeree can accept an offer, whatever its character, but after a contract has once been formed a different problem is presented. See infra, § 432. See further, illustrating the effect upon the doctrine of undisclosed principal caused by the personal nature of the contract, Walton v. Davis, 22 Cal. App. 456, 134 Pac. 795; National Bank v. Diefendorf, 90 Ill. 396; Cowan v. Curran, 216 Ill. 598, 75 N. E. 322; Kelly v. Thuey, 102 Mo. 522, 15 S. W. 62, 143 Mo. 422, 45 S. W. 300; Barns v. Barrow, 61 N. Y. 39; Navarre Hotel Co. v. American Appraisal Co., 156 App. Div. 795, 142 N. Y. S. 89; King v. Batterson, 13 R. I. 117, 43 Am. Rep. 13.

22 Higgins v. Senior, 8 M. & W. 834; Anderson v. Beard, [1900] 2 Q. B. 260;

charged the matter on his books to the agent and made out an invoice in the agent's name,23 the principal can also sue.24 These rights and liabilities are not affected by the circumstance that the contract is written, if it is neither under seal nor a negotiable instrument. 25

§ 288. What is sufficient disclosure of the principal.

As different rules of law are applicable when the agent discloses his principal and when he does not, the question of what is a sufficient disclosure of the principal is an important one. It is said that the duty is on the agent to make the disclosure, not upon the person with whom he is dealing to discover it.26 Therefore, it is not sufficient to relieve the agent from personal liability that the person with whom he dealt had means of knowing that the agent was acting as such.27 But, on the other hand, the general principles governing the formation of contracts require the conclusion that if the agent gave such information that a reasonable person in the light of the sur

Edwards v. Gildemeister, 61 Kans. 141, 59 Pac. 259; York County Bank v. Stein, 24 Md. 447; Byington v. Simpson, 134 Mass. 169, 45 Am. Rep. 314; Chandler v. Coe, 54 N. H. 561; Smith v. Felter, 63 N. J. L. 30, 42 Atl. 1053; Dykers v. Townsend, 24 N. Y. 57; Ludwig v. Gillespie, 105 N. Y. 653, 11 N. E. 835.

23 Thomson v. Davenport, 9 B. & C. 78. Compare Rodliff v. Dallinger, 141 Mass. 1, 4 N. E. 805, 55 Am. Rep. 439, stated supra, § 285.

24 Beckham v. Drake, 9 M. & W. 79, 91; McFadden v. Henderson, 128 Ala. 221, 29 So. 640; Smith v. Felter, 63 N. J. L. 30, 42 Atl. 1053; Nicoll v. Burke, 78 N. Y. 580; Thayer v. Luce, 22 Oh. St. 62, 78; National Bank v. Nolting, 94 Va. 263, 26 S. E. 826; Deitz v. Insurance Co., 31 W. Va. 851, 8 S. E. 616.

25 See infra, § 295.

26 Holt v. Ross, 54 N. Y. 472, 475, 13 Am. Rep. 615; De Remer v. Brown, 165 N. Y. 410, 419, 59 N. E. 129; Baldwin

v. Leonard, 39 Vt, 260. 94 Am. Dec. 324.

27 Brent v. Miller, 81 Ala. 309, 8 So. 219 (knowledge that the agent had dealt for a certain principal in other transactions, held not to excuse the agent from liability); Amans v. Campbell, 70 Minn. 493, 73 N. W. 506, 68 Am. St. Rep. 547 (the fact that the defendant Campbell contracted in the name of "Campbell & Company" held not sufficient disclosure that he was acting as agent for his wife who did business under the name of Campbell & Company, but not to the general knowledge of the community); Harmon v. Parker, 193 Mich. 542, 160 N. W. 380; Cobb v. Knapp, 71 N. Y. 348, 27 Am. Rep. 51; Curtis v. Miller, 73 W. Va. 48, 80 S. E. 774. See also Borries v. Imperial Ottoman Bank, L. R. 9 C. P. 38; Neely v. State, 60 Ark. 66, 28 S. W. 800, 46 Am. St. Rep. 148; Raymond v. Crown & Eagle Mills, 2 Metc. 319.

rounding circumstances would have understood that the agent was acting for a principal indicated, though not named, the contract is with the principal and not with the agent. 28 And if the person with whom the agent dealt knew in fact that he was acting as agent for a specific principal though the agent did not himself disclose the fact, the case is not dealt with as one of undisclosed principal and the agent is not personally bound by the contract.2

§ 289. Election of remedies where principal is undisclosed. One who deals with the agent of an undisclosed principal would presumably desire, on discovering the existence of the principal, to assert that an obligation existed in his favor against both the principal and agent either jointly or severally, if the law allowed him to do so. If this were permitted, no assertion of right against either principal or agent would limit the right to make a claim upon the other, except to the extent that satisfaction was actually received. There seems no doubt, however, that the law does not give so large a right since with slight contrary authority it is held that after discovery of the principal judgment cannot be recovered against both agent and principal.30 Though it is not easy to reconcile

28 In Mercer v. Leihy, 139 Mich. 447, 102 N. W. 972, an auctioneer selling a horse, in the course of bidding requested the owner to show himself, and a man in the crowd stated that he was the owner of the horse. This was held a sufficient disclosure of the auctioneer's principal, though the name of the man who professed ownership of the horse was not given and was not known to the plaintiff.

In Johnson v. Armstrong, 83 Tex. 325, 18 S. W. 594, 29 Am. St. Rep. 648, the defendant was President of Fort Worth University. He requested the plaintiffs to draw plans for a building, which they did. The plaintiffs knew that the plans were for a school, or college building, but did not know for what institution. The court held that these circumstances showed that the

defendant was not contracting personally, and said of the plaintiffs: "The inquiry that it was their duty to make, under the circumstances of this case, would have developed a responsible principal, and it is difficult to conclude that plaintiffs did not have actual knowledge that they were dealing with a corporation, nowithstanding the fact that they did not at the time of making the contract inquire for or get that information from Johnson, the agent."

29 Chase v. Debolt, 7 Ill. 371; Warren v. Dickson, 27 Ill. 115; Boston & Maine R. v. Whitcher, 1 Allen, 497.

30 See infra, note 38. It has, however, been held in several cases that an action might be brought against both principal and agent, and that election, if necessary, need not be made until