Undisclosed Principal. Where one enters into a contract in his own name, but is in fact the agent of another for whose benefit he is acting, and he does not disclose the name of his principal, though the fact that he is acting as an agent is known to the other party, the person for whose benefit such contract is made is termed an undis closed principal. The rules concerning his rights and liabilities are fairly well settled both in this country and in England, though constantly and severely criticised, but at the same time acknowledged by the critics to be probably unchangeable. The cases have re suited in a settled 'rule of decision that the other party to the contract may at his op tion sue the agent on the contract to the same extent as if he were principal ; Arger singer v. MacNaughton, 114 N. Y. 535, 21 N.' E. 1022, 11 Am. St. Rep. 687 ; Brigham v. Herrick, 173 Mass. 460, 53 N. E. 906; Bey mer Bonsall, 79 Pa. 298; Mitchell v. Beck, 88 Mich. 342, 50 N. W. 305; 7 Term 360.
Where the principal, under a written con tract, is disclosed on its face by the agent, in England the other party may sue either ; L. R. 6 C. P. 486 ; 8 M. & W. 834; unless the contract sufficiently shows that the agent is not to be bound; 2 T. L. R. (K. B.) 7. In this country there is said to be no case on the agent's liability ; 19 Harv. L. Rev. 456 (1906), where the question is discussed on principle. The cases are collected in Warn baugh, Cas. Ag. 548-582. Or he may main tain an action against the undisclosed prin cipal when it is ascertained who he is ; York Mfg. Co. v. R. Co., 3 Wall. (U. S.) 107, 18 L. Ed. 170 ; Maxey Mfg. Co. v. Burnham, 89 Me. 538, 36 Atl. 1003, 56 Am. St. Rep. 436; Richardson v. Farmer, 36 Mo. 35, 88 Am. Dee. 129 ; Hubbard v. Ten Brook, 124 Pa. 291, 16 Atl. 817, 2 L. R. A. 823, 10 Am. St. Rep. 585; Kayton v. Barnett, 116 N. Y. 625, 23 N. E. 24 ; Woodford v. Hamilton, 139 Ind. 481, 39 N. E. 47; 9 B. & C. 78 ; [1893]I Q. B. 346 ; and the rule of the liability of the undis closed principal applies not only to oral contracts, but to written ones other than negotiable _instruments ; and parol evidence is permissible to show that the principal is liable; Higgins v. Senior, 8 M. & W. 834; Darrow v. Produce Co., 57 Fed. 463; Chand ler v. Coe, 54 N. H. 561; Gates v. Brower, 9 N. Y. 205, 59 Am. Dee. 530 ; and this doc trine is also true as to contracts required by the statute of frauds to be in writing ; Trueman v. Loader, II Ad. & El. 589; By ington v. Simpson, 134 Mass. 169, 45 Am. Rep. 314; Waddill v. Sebree, 88 Va. 1012, 14 S. E. 849, 29 Am. St. Rep. 766; but where the other party, with knowledge of all the cir cumstances, makes his election as to whom he will charge, the other is discharged, and cannot afterwards be sued by such third per son; New York & C. S. S. Co. v. Harbison, 16 Fed. 688.
The rule of the liability of the principal does not apply to contracts under seal ; Badger Silver Mining Co. v. Drake, 88 Fed. 48, 31 C. C. A. 378 ; Sanger v. Warren, 91 Tex. 472, 44 S. W. 477, 66 Am. St. Rep. 913 ; 6 Ch. App. 525 ; nor to negotiable instruments; Pease v. Pease, 35 Conn. 131, 95 Am. Dec. 225; Powers v. Briggs, 79 Ill. 493, 22 Am. Rep. I7i ; Sparks v. Transfer Co., 104 Mo. 531, 15 S. W. 417, 24 Am. St. Rep. 351 ;
Rand v. Hale, 3 W. Va. 495, 100 Am. Dee. 761 ; Siffkin v. Walker, 2 Camp. 308. This exception naturally results from the doctrine of the law merchant holding only the parties to a negotiable instrument as liable to a suit upon it, but it is to be noted that if there is uncertainty upon the face of the paper, whether it is intended to bind the principal or the agent, parol evidence may be admitted to make clear the intention of the parties; Metcalf v. Williams, 104 U. S. 93, 26 L. Ed. 665; Simanton v. Vliet, 61 N. J. L. 595, 40 Atl. 595; Keidan v. Winegar, 95 Mich. 430, 54 N. W. 901, 20 L. R. A. 705 ; but such evi dence is inadmissible to render liable a per son who is not named in, or bound by, a written contract ; Ferguson v. McBean, 91 Cal. 03, 27 Pac. 518, 14 L. R. A. 65.
In considering the right of an undisclosed principal to sue the other party, it might be considered that since, ordinarily, a contract cannot confer a right of action upon a per son not a party to it, such principal would have no action. It is, however, now fairly well settled, both in England and in this country, that the principal may sue upon the contract and introduce parol evidence to show that it was made for his benefit ; 10 B. & C. 671; L. R. 6 Eq. 165 ; Buchanan v. Linseed-Oil Co., 91 Fed. 88, 33 C. C. A. 351; Prichard v. Budd, 76 Fed. 710, 22 C. C. A. 504; Nicoll v. Burke, 78 N. Y. 580; Girard v. Taggart, 5 S. & R. (Pa.) 19,•9 Am. Dec. 327; Kelly v. Thuey, 143 Mo. 422, 45 S. W. 300; Cushing v. Rice, 46 Me. 303, 7 Am. Dec. 579.
Either principal or agent, may recover on such a contract not under seal ; Stockbarger v. Sain, 69 Ill. App. 436 ; Nitro Powder Co. v. Marx & Rawolle, 148 App. Div. 571, 133 N. Y. Supp. 151; and the principal need only prove by a preponderance of evidence that he is the real party; it need not be "clear and satisfactory" ; Barbre v: Goodale, 28 Or. 465, 43 Pac. 378. An undisclosed prin cipal may sue on a parol contract made by an agent in his own name; Coulter v. Blatchley, 51 W. Va. 163, 41 S. E. 133 ; Bat tey v. Lunt, Moss & Co., 30 R. I. I, 73 Atl. 353, 136 Am. St. Rep. 926; but not upon one under seal ; Smith v. Pierce, 45 App. Div. 628, 60 N. Y. Supp. 1011. Such principal may be sued by the other party ; Brooks v. Shaw, 197 Mass. 376, 84 N. E. 110; Schweyer v. Jones, 152 Mich. 241, 115 N. W. 974; but not on a specialty ; Western S. R. Co. v. Fire Ins. Co., 163 Fed. 644 ; and the agent may be sued ; Whitney v. 'Woodniansee, 15 Idaho 735, 99 Pac. 968; Fitzpatrick v., Man heimer, 157 Mich. 307, 122 N. W. 83; Jewell v. Theater Co., 12 Cal. App. 681, 108 Pac. 527; Leterman v. Lumber Co., 110 Va. 769, 67 S. E. 281; Hale v. Triest, I5() App. Div. 166, 134 N. Y. Supp. 673. The third party may sue either principal Or agent; Gay v. Kelley, 109 Minn. 101, 123 N. W. 295, 26 L. R. A. (N. S.) 742; but he must elect ; Cher rington v. Burchell, 147 App. Div. 16, 131 N. Y. Supp. 631. If the principal sues, the oth er party may set off a demand against the agent ; Winslow Bros. & Co. v. Staton, 150 N. C. 264, 63 S. E. 950; his rights as un disclosed principal are subject to claims ac quired in good faith against the agent ; Kent v. De Coppet, 149 App. Div. 589, 134 N. Supp. 195.