In another respect the law of agency touches the borderland of contracts for the benefit of a third person. It is familiar law that if a contracting party either is or assumes to be the agent of another, the latter may sue upon the contract. The right, of a third person benefited by a contract to sue upon it has sometimes been defended on the ground that the promisee was the agent of the third person. But the existence of an agency is a question of fact. It cannot be assumed as a convenient piece of machinery when in fact there was no agency.

15 Burrill on Assignments, 6th ed., Sec.Sec. 257 seq.

16 Ropers Locomotive Works v. Kel-ley, 88 N. Y. 234. Cf. Mayer v. Chattahoochee Bank, 61 Ga. 326. See also supra, Sec. 348, ad fin.

17 Comley v. Dasian, 114 N. Y. 161,

21 N. E. 135. See also Keithley v. Pitman, 40 Mo. App. 696; Kelly p. Babcock, 49 N. Y. 318.

18 Dixon v. Pace, 63 N. C. 603. See also Center v. McQuesten, 18 Kan. 476.

19Thomas v. Atkinson, 94 S. Car. 126, 77 8. E. 722.