App. D. 715, 164 N. Y. S. 912; Thayer v Luce, 22 Ohio St. 62, 78; Houghton v. J. W. Hundley Co. (Okl.), 157 Pac. 1142; Levy v. Nevada-California-Oregon Ry., 81 Oreg. 673, 160 Pac. 808; Hubbert v. Borden, 6 Whart. 79; Hubbard v. Tenbrook, 124 Pa. 291, 16 Atl 817, 2 L. R. A. 823, 10 Am. St. Rep. 685; Battey v. Lunt Mfg. Co., 30 R. I. 1, 73 Atl. 363, 136 Am. St. Rep. 926; Edwards v. Golding, 20 Vt. 30; Pacific Power & Light Co. <>. White, 96 Wash. 18, 164 Pac. 602. In Dunlop Pneumatic Tyre Co. v. Selfridge, [1915] A. C. 847, it was held that the principal must furnish the consideration either himself or by his agent, and that therefore a sale by the agent of his own goods would not support a promise to maintain the price on which the principal, the manufacturer of the goods, could sue. See supra, Sec.114.

6Cothay v. Fennell 10 B. & C. 671.

6a Schmaltz v. Avery, 16 Q. B. 655; Harper v. Vigers, [1909] 2 K. B. 549. It would seem, however, that such a false representation by the agent would give the other contracting party a right of rescission on restoring the value of any benefit received.

An exception to the right of recovery by the undisclosed principal has been made where the agent expressly asserts in the contract that he is the principal. In such a case, another who is actually the principal, has been denied the right to sue.7 This exception is inconsistent with the general rule,8 since it must be equally true in any case where the agent does not disclose that he is an agent, that the third party enters into the contract on the assumption that the agent is the principal.9 The only possible distinction where this assumption is based on an express statement of the agent, rather than on inferences naturally and reasonably drawn from the surrounding circumstances is that the parties have made the representation more material in the former case.10 But it can hardly be denied that the identity of a party to a contract is material in every case, unless perhaps where he is the promisee in a unilateral contract, himself undertaking nothing.

The undisclosed principal may sue and be sued though the contract was in writing,11 if it was neither under seal, nor a 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 parly in the agent who contracts in his own name.13 The matter is, however, more accurately expressed by saying that the parly 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

7 Humble v. Hunter, 12 Q. B. 310. The agent in this case falsely described himself in a charty party as "owner" of the vessel chartered. See also Formby v. Fannby, 102 L. T. 116; Werlin v. Equitable Surety Co., 227 Mass. 157, 116 N. E. 484; Moore v. Cement Co., 121 N. Y. App. Div. 667, 106 N. Y. S. 393; Crowder v. Yovovich, 84 Oreg. 41, 164 Pac 576.

8 Lord Russell expressed doubts of its validity in Killick v. Price, 12 T. L. R. 253, but it was subsequently approved by the Court of Appeals in Formby v. Formby, 102 L. T. 116.

9 In Rederi Aktienbolaget Transatlantic v. Fred Drughorn, Ltd., [1918] 1 K. B. 394, [1919] A. C. 203, the court held that the description of a person in a contract as "the charterer" did not preclude suit by an undisclosed principal of that person, as the word "owner" was held to do in Humble v. Hunter (stated supra, note 7). The distinction is tenuous. See Rederiak-tiebolaget Argonaut v. Hani, [1918] 2 K. B. 247.

10 In Winchester v. Howard, 97 Mass. 303, 93 Am. Deo. 93, the agent expressly represented that he was not acting for a certain principal, with whom the other contracting party stated he was unwilling to deal. In fact the agent was representing that principal. It was held the principal could not sue. See also Gordon v. Street, [1899] 2 Q. B. 641 {C. A.). Cf. Kelly Asphalt Block Co. v. Barber Paving Co., 211 N. Y. 68, 105 N. E. 88, where the principal was allowed to enforce a contract made by an agent who refrained from disclosing his agency because his principal was a competitor of the defendant and feared that the defendant would not contract with him.

11 See cases in this section passim; also infra, Sec.295.

12 Bee infra, Sec.Sec. 296, 298. The doc-tri nee of undisclosed principal are applicable to non-negotiable promissory notes. Garland v. Reynolds, 20 Me. 45; National Ins. Go. v. Allen, 116 Mass. 398; Everett v. Drew, 129 Mass. 150.

13 See Navarre Hotel Co. v. American Appraisal Co., 142 N. Y. 8. 89, 156 App. Div, 795; Mechem on Agency (2d ed.), Sec. 2067.

14Sydney v. Mugford Printing etc. Co., 214 Fed. 841; Sullivan v. Shailer, 70 Conn. 733, 40 Atl. 1054; Cowan v. Curran, 216 11l. 598, 75 N. E. 322; Shields ». 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.

16It is said by Mechem, and his statement is repeated, e. g., in Birmingham Matinee Club p. 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 qualintecuted under a material mistake should be rescinded.

17See 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. 8. 163. But see Walton v. Davis, 22 Cal. App. 456, 134 Pac. 796.

18 Mechem on Agency (2d ed.), i 2068; Cowan v. Curran, 216 111. 598, 75 N. E. 322; cf. Davidson v. Hurty, 116 Minn. 280, 133 N. W. 862, 39 L. R.A. (N.S.)324.

19See supra, Sec.80, infra, Sec.411.

20Hawkins 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.