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. Gildemeistor, 61 Kans. 141, 69 Pac. 259; York County Bank v. Stein, 24 Md. 447; Byington v. Simp-eon, 134 Mass. 169, 45 Am. Rep. 314; Chandler v. Coe, 54 N. H. 561; Smith p. 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 p. Davenport, 9 B. & C. 78. Compare Rodliff v. Dallinger, 141 Mass. 1,4 N. E. 805, 55 Am. Rep. 439, stated supra, Sec. 285.
24 Beckham v. Drake, 9M.& W. 79, 91; McFadden v. Henderson, 128 Ala, 221, 29 So. 040; 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; Delta v. Insurance Co., 31 W. Va. 851, 8 S. E. 616.
25 See infra, Sec. 295.
26 Holt v. Rose, 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. Deo. 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.
Sec. 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 plana for a building, which they did. The plaintiffs knew that the plana 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, no-withstanding the fact that they did not at the time of making the contract inquire for or get that information from Johnson, the agent."
29Chase v. Debolt, 7 111. 371; Warren v. Dickson, 27 111. 115; Boston & Maine R. v. Whitcher, 1 Allen, 497.
30See infra, note 38. It has, however, been held in several oases that an action might be brought against both principal and agent, and that election, if necessary, need not be made until all the decisions, the best view seems to be that the legal right is against the agent with whom the contract was in terms made, but that the law permits in substitution for the right against the agent a corresponding right against the principal. Under this view affirmative action is necessary to effect the substitution of the new right for the old. The plaintiff, therefore, must manifest within a reasonable time an election to hold the principal or the right to charge him will be lost.31 But no delay or conduct will discharge the principal until the plaintiff has both learned that the agent was such, and also has discovered the principal for whom the agent was acting.32 After such knowledge, any conduct on the part of the plaintiff which indicates an intention to hold the agent only, will be a discharge of the principal. But the manifestation of an intent to hold the agent, as by bringing action against him,33 does not necessarily indicate an election to let the principal go free though it is doubtless evidence of such an election. And where an action against an agent and an attachment of his property were prosecuted after full knowledge of the principal's liability, it was held in the absence of fraud or mistake, an irrevocable election.34 Even partial payment will not necessarily be conclusive.35 Taking negotiable paper of one party or the other the close of the evidence. Williams v. O'Dwyer & Ahem Co., 127 Ark. 530, 192 8. W. 899; Gay v; Keliey, 109 Minn. 101, 123 N. W. 295; Tew v. Wolfsohn, 77 N. Y. App. Div. 454, 79 N. Y. 8. 286, affd., 174 N. Y. 272, 66 N. E. 934.
31Smethunt v. Mitchell, 1 E. & E. 622.
32Thomson v. Davenport, 9 B. & C. 78; Curtis v. Williamson, L. R. 10 Q. B. 57; Merrill v. Kenyon, 48 Conn. 314, 40 Am. Rep. 174; Raymond v. Crown, etc., Mills, 2 Metc. 319; Estes v. Aaron, 227 Mass. 96, 99, 110 N. E. 392. Sea also Steele-Smith Grocery Co. v. Potthast, 109 Ia. 413, 80 N. W. 617; Gay v. Kelley, 109 Minn. 101, 123 N. W. 295, 26 L. R. A. (N. S.) 742; Remmel 0. Townsend, 83 Hun, 353, 31 N. Y. 8. 985; Georgj v. Texas Co., 225 N. Y. 410,122 N. E. 238.
33 Curtis v. Williamson, L. R. 10 Q. B. 57; Ferry v. Moore, 18 111. App. 135; Steele-Smith Co. v. Potthast, 109 Ia. 413, 80 N. W. 517; Jones v. Johnson, 86 Ky. 530, 6 S. W. 582; Hoffman v. Anderson, 112 Ky. 893, 67 S. W. 49; Raymond v. Crown, etc., Mills, 2 Metc. 319; Estes v. Aaron, 227 Mass. 96, 100,116 N. E. 392; Cobb v. Knapp, 71 N. Y. 348, 27 Am. Rep. 51; Tew v. Wolfsohn, 77 N. Y. App. Div. 454, 79 N. Y. 8. 286, affd. 174 N. Y. 272, 66 N. E. 934; Daggett v. Champlain Mfg. Co., 71 Vt. 370,45 Atl. 755.
34 Barrell v. Newby, 127 Fed. 656, 62 C. C. A. 382. See also Booth #. Barron, 29 N. Y. App. Div. 66, 51 N. Y. S. 391; Love P. St. Joseph Stock Yards Co. (Utah), 169 Fac. 951.
36 Jones v. Johnson, 86 Ky. 530, 6 8. W. 582. After discovery of the prinfor the claim is not, as matter of law, a decisive election.36 Nor is merely charging the goods to the agent or demanding payment from him after discovery of the principal.37 The question resolves itself into one of fact. Did the plaintiff with full knowledge elect to rely solely upon the credit of either the agent or the principal? If, however, judgment is taken against either with knowledge of the facts no claim can thereafter be asserted against the other although the judgment is unsatisfied.38 And a settlement of the claim with the agent and release of him has the same effect.39 But a judgment against the agent taken before disclosure of the facts of the agency will not bar a subsequent action against the principal.40 cipal a claim was made on the insolvent estate of the agent and a small dividend paid. The court nevertheless allowed a subsequent action against the principal. In Hoffman v. Anderson, 112 Ky. 893, 67 S. W. 49, the facts were the same except that the claim was presented against the principal's estate and a subsequent action was allowed against the agent.
34 See Atlas Steamship Co. v. Colombian Land Co., 102 Fed. 358, 42 C. C. A. 398. But in Ames Packing Co. v. Tucker, 8 Mo. App. 96, the court held that though taking negotiable paper in Missouri is presumably conditional only, it was, nevertheless, a conclusive election to take the individual note of the agent without taking at the time of the transaction any steps showing an intent to hold the principal.
37 Dyer v. Swift, 154 Mass. 159, 28 N. E. 8.
38 Priestly v. Fernie, 3 H. & C. 977; Morel v. Westmorland,  A. C. 11; Cross v.. Matthews, 91 L. T. (N. S.) 600; Barrell v. Newby, 127 Fed. 656, 62 C. C. A. 382; Eufaula Grocery Co. v. Missouri Nat. Bank, 118 Ala. 408, 24 So. 389; Jones v. Ętna. Insurance Co., 14 Conn. 601; Mussenden v. Raiffe, 131 111. App. 466; Jones v. Johnson, 86 Ky. 630, 6 S. E. 682; E. J. Codd Co. v. Parker, 97 Md. 319,
66 Atl. 623; Kingsley v. Davis, 104 Mass. 178; Weil v. Raymond, 142 Mass. 206, 7 N. E. 860; Murphy v. Hutchinson, 93 Miss. 643, 48 So. 178, 21 L. R. A. (N. S.) 7S5; Sessions v. Block, 40 Mo. App. 669; Lean v. Cells (Mo. App.), 186 S. W. 1160; Tutbill v. Wilson, 90 N. Y. 423; Georgi v. Texas Co., 225 N. Y. 410, 122 N. E. 238; Lage v. Weinstein, 35 N. Y. Misc 298, 71 N. Y. S. 744; Rounesville v. North Carolina Home Ins. Co., 13S N. C. 191, 60 S. E. 619; Pittsburg Plate Glass Co. v. Roquemoie (Tex. Civ. App.), 88 S. W. 449. See, however, the contrary decision of Beymer v. Bonsall, 79 Pa. 298; also McLean v. Sexton, 44 N. Y. App. Div. 520, 60 N. Y. S. 871. 39Orvia v Wells, 73 Fed. 110, 19
C. C. A. 382; Booth v. Baron, 29 N. Y. App. D. 66, 51 N. Y. S. 391; Love v. St. Joseph's Stock Yards Co. (Utah), 169 Pac. 961.
40Auto Parts Co. v. Roberts, 194 111. App. 417; Lindquist v. Dickson, 98 Minn. 369, 107 N. W. 958, 8 L. B. A. (N. S.) 729; Greenburg v. Palmieri, 71 N. J. L. 83, 68 Atl. 297; Georgi v. Texas Co., 225 N. Y. 410, 122 N. E. 238; Brown v. Reiman, 48 N. Y. App.
D. 295, 62 N. Y. S. 663. It is somewhat difficult to see why the claim is not merged in the judgment. Id
In enforcing the contract against a third person, the principal's right is superior to the agent's and the assertion of a right by the principal to enforce the contract abates the agent's right.41
41Sadler v. Leigh, 4 Campb. 195; Warder v. White, 14 111. App. 50; Pitts v. Mower, 18 Me. 361, 36 Am.