Sec. 277. Liability Of Agent Acting For Undisclosed Principal

"The general rule is that one who acts as agent for another, in order to release himself from liability, should disclose his principal, because otherwise it would be presumed that he intended to bind himself personally. In other words, it is not the duty of one dealing with an agent to find out whether he is acting in the transaction in that capacity, or as principal; 31 but it is the duty of the agent, if he desires to relieve himself from personal liability, to disclose the name of his principal in the transaction." 32 "One who contracts as principal cannot escape liability, certainly not after a suit is brought, by proving that he was acting as an agent."33

" It is a well recognized rule of law that where an agent conceals the fact of his agency and enters into a contract in his own name, he may be treated as the principal by the party with whom he deals, and may be held liable on the contract to the same extent as if he were in fact the principal in interest."34 "It is well settled that when the agency is disclosed, and the contract relates to the matter of the agency, and is within the authority conferred, the agent will not be personally bound, unless, upon clear and explicit evidence of an intention to substitute or to superadd his personal liability for or to that of the principal."85

"In case of written agreements executed by an agent, the agent is, in general, personally bound, if the instrument can have no legal operation against the principal. But in construing oral agreements made by an agent, courts give effect to the real intention of the parties, unembarrassed by technical rules of construction; and when the act is within the authority, the presumption is that the agent intends to bind the principal and not himself." 36

31 This statement should not be confused with the principle that one who deals with an agent, knowing him to be such, is bound to know the limitations placed upon his authority. See Sec. 28 supra.

32 Crosett v. Carleton. 48 N. Y. Suppl. 308 (1897). See also Sec. 263 supra.

33 McGovern v. Bennett. 146 Mich. 562 (1906), (citing White v. Boyee, 21 Fed. 228; McKnown v. Gettys, 25 Ky. Law Rep. 2070).

34 Whitney v. Woodmansee. 15 Idaho 739 (1909). (citing 2 Clark & Skyles on Ag.. Sec. 568; Storv on Ag.. Sec. 266, 267; Murphy v. Helmrich. 66 Cal. 69; 4 Pac. 958; Ye Seng Co. v. Corbitt. 9 Fed. 423; 7 Saw. 368).

35 Whiting v. Saunders, 23 Misc. 332 (N. Y. 1898), (citing Hall v. Lauderdale, 46 N. Y. 74).

In the editorial note in Wheeler v. McGuire, 2 L. R. A. 811 (Ala. 1888), it is said: "An agent may become liable on contracts made by him in that capacity: first, where the principal is not known; secondly, where there is no responsible principal (except in the case of public agents); thirdly, where he becomes liable by an undertaking of his own." This note also sets forth the following propositions, citing authorities therefor: "Where an agent in his dealings with third parties does not disclose his principal he will be personally liable on the contract.

"The agent will be liable on a contract entered into for an undisclosed principal, even if it is well known to the third party that he acts only as an agent.

"When a party deals with the agent, without any disclosure of his agency, he may elect to treat the after discovered principal as the person with whom he contracted.

"He has a right, within a reasonable time, to elect to proceed against the principal, unless in the meantime, with full knowledge as to who was the principal, and with the power of choosing between him and the agent, he had elected to treat the agent alone as his debtor.

"After a third party has elected whom to sue, and has sued either the agent or the principal to judgment, he cannot after that sue the other, whether the suit has been successful or not.

"If, at the time of the sale, the seller knows, not only that the person who is nominally dealing with him is not principal, but agent, and also knows who the principal really is, and notwithstanding all that knowledge, chooses to make the agent his debtor, dealing with him alone, the seller cannot charge the principal, having once elected to sue the agent."

36 Hall v. Lauderdale, 46 N. Y. 70 (1871).

Mr. Clark lays down these propositions: Where an agent contracts as agent for a principal who is named, the agent cannot sue in his own name on the contract, except where he is the real principal, though named as agent, or where he has a special interest in the subject matter of the contract. The agent cannot be sued on the contract, except where the contract is under seal, and he has made himself a party to it, or, in some jurisdictions, where he contracted for a foreign principal, or where he has exceeded his authority or has contracted without authority, or where the contract was really made with him personally, though he is described as agent.37