Venience, namely, that " it accords the remedy to the party

Mho in most instances is chielly interested to enforce the

promise, and avoids multijdicity of actions."''^ The doctrine

as applied in the United States is confessedly an anomaly,

but serves to illustrate the fact that anomalous doctrines arc

sometimes admitted into the law where they aid to work out

su])stantial justice, and that the strict common law rule as to

j)rivity of contract has important exceptions.^

В§ 119. Application to agency generally.

The licneral doctrines of agency do not run counter to the

fundamental dogma as to privity of contract. Where the

])riucipal is disclosed the third party deals with him, and not

with the agent, and relies upon his character, credit, and sub-

stance, and not upon that of the agent. The agency is merely

a means through which the minds of the principal and the

third party meet in mutual agreement. When once the con-

tract is formed the agent drops out. The dii'liculties arising

from unauthorized contracts subsequently ratified have already

been discussed.'* The difficulties arising in the enforcement

of rights against the agent upon an unauthorized contract not

subsequently ratified will be discussed hereafter.^ We have

now to consider tlie difTiculties attending the enforcement of

rights against an undisclosed ])rincipal, and the greater diffi-

culties attending the enforcement of rights by an undisclosed

principal.

В§ 120. Application to contracts for undisclosed principal.

A more scri(jus difiiculty presents itself in the doctrines

peculiar to undisclosed princii)als. In the case of a conti-act

1 McDowell V. I.Aev, 35 Wis. 171.

2 Lehow V. Simonton, 3 Colo. 3i0 ; Wood I-. Moriarty, 15 r. I. 518.

8 See Huffcut's Ausou on Coiit. Pp. 279-282; Ilaniman on Cont.

pp. 216-228.

* Ante, В§ 38. An unauthorized contract made for an undisclosed princi-

pal cannot be ratified. Kcighley v. Durant, 1901, App. Cas. 210; ante, В§ 32.

* Post, В§ 183.

CONTRACT FOR UNDISCLOSED miNCIPAL. 161

made by an agent in his own name, as princij)al, tlie third

party obviously relies upon the character, credit, and sul)-

stance of the agent alone, and intends to acquire rights

against the agent and against no one else, and to incur obli-

gations to the agent and to no one else. So far at least as the

third party is concerned it is a contract between him and the

agent, and the principal is never for a moment in his contem-

plation. The strict application of the common law rule would

lead to the conclusion, therefore, that the principal could

neither sue nor be sued upon the contract.

Yet just the opposite conclusion prevails. The case escapes

the common law doctrine and establishes the sweeping rule

that an undisclosed principal may both sue and be sued upon

a contract made in his behalf or to his secret use by his

agent. " If an agent makes a contract in his own name, the

principal may sue and be sued upon it ; for it is a general

rule, that whenever an express contract is made, an action is

maintainable upon it, either in the name of the person with

whom it was actually made, or in the name of the person with

whom, in point of law, it was made." ^ The rule is probably

the outcome of a kind of common law equity, powerfully aided

and extended by the fiction of the identity of principal and

agent and the doctrine of reciprocity or mutuality of con-

tractual obligations. The rule has two distinct parts : (1) that

the undisclosed principal may be sued ; (2) that the undis-

closed principal may sue. The first is probably based upon

the notion that it is inequitable to allow the principal to take

the benefits of a contract made by his agent and compel the

third person to look only to the agent for compensation. The

second is based upon the notion that contract obligations re-

quire mutuality, and that, since the principal may be sued

he must also be permitted to sue. The fiction of identity is

employed to establish a real or true assent on the part of the

principal in place of an assent or promise constructed by

the law, such as is created in all that class of obligations

known as quasi-contracts. Whatever the true grounds of this

doctrine, it is at all events conceded that the one case in which