If the agent sues the person with whom he dealt it is a defence that settlement has been made with the principal though he was wholly undisclosed at the time of the contract.58 Whether a claim that could be used as set-off against the principal may also be used as set-off against the agent, depends upon the character of the local statute governing set-off, and upon whether equitable principles are applied. Under the early English Statute such a set-off could not be used;59 but at the present day a contrary result would probably be reached in most jurisdictions.60

739. See also Macfarlane v. Gianna-OOpulo, 3 H. & N. 860; Smethuret v. Mitchell, 1 E. & E. 622.

55 Irvine v. Watson, 5 Q. B. D. 414. See also Davison v. Donaldson, 9 Q. B. D. 623.

56Armstrong v. Stokes, L. R. 7 Q. B. 598.

57 Bush v. Devine, 5 Harr. 376; Bal-ister v. Hamilton, 3 La. Ann. 401; Hyde v. Wolf, 4 La. 234, 23 Am. Dec. 484; York County Bank v. Stein, 24 Md. 447; Brown v. Bankers', etc., Tel.

Co., 30 Md. 39; Schepflin v. Dessar, 20 Mo. App. 569; Laing v. Butler, 37 Hun, 144. See also dicta to this effect in Guest v. Burlington Opera House Co., 74 Ia. 457, 33 N. W. 158; Simmons Hardware Co. v. Todd, 79 Miss. 163, 29 So. 851.

58 Atkinson v. Cotosworth, 3 B. & C. 647.

59Isberg v. Bowden, 8 Exch. 852. See also Alsop v. Caines, 10 Johns. 396.

Sec. 204. Defences to actions against the agent of an undisclosed principal. If instead of suing the principal the person with whom the agent dealt sues the agent the latter cannot claim a set-off which would have been good in a suit against the principal, even though the principal's existence is discovered before the time when performance of the contract was due.61