If an agent acting for an undisclosed principal have made a

contract in his own name, the principal may sue upon it, and it fol-

lows, as a branch of this rule, that if a person lend money nomi-

nally on his own account, but really on account and as the loan of

another, the real lender may sue for the money ; but in such a case,

the plaintiff who alleges that he was in reality the lender, must

prove that fact clearly and distinctly, (a)

The principal's right to enforce contracts made by his agent is

subject to this rule, viz., that if the agent have been allowed to deal

In his own name, the party dealing with him will enjoy the same

rights against the employer as he might have exercised against his

agent had that agent really been a principal, ih) Thus, when a

{t) Coore V. Callawaj", 1 Esp. 115. Coles v. Boll, 1 Camp. 478. Solomons v.

Dawes, 1 Esp. 83. See Bartram v. Farebrother, 4 Bingh. 579. See this distinction

much discussed in "Whitehead v. Anderson, 9 M. <fe W. 518.

{n) Doe de Lyster v. Goldwin, 2 Q. B. 143. Doe v. Walters, 10 B. <fe C. 626.

(t>) 2 Camp. 96. (jc) 3 B. cfc A. 689.

(a*) Vide Doe v. Summersett, 1 B. <k Ad. 135.

{y) Solomons v. Dawes, 1 Esp. 83. See Roe v. Davies, 7 East, 363. Charrinton v,

Johnson, 13 M. & W. 856.

(z) Co. Litt. 258, a. So the recognition of an act professedly done by A. as the

agent, and for the benefit of B., may be ratified by the latter, and will protect A.

Walker v. Hunter, 2 C. B. 324; but if it were done professedly as the agent, and for

the benefit of some other person, B.'s ratification would be wholly unavailing. Wil-

eon V. Tumman, 6 M. & G. 236.

(a) See Sims v. Bond, 5 B. <fe Ad. 393. Alexander v. Barker, 2 Tyrwh. 146. 2 C

& J. 133. Sims V. Brittain, 4 B. & Ad. 375. See Bastable v. Poole, 5 Tyrwh. Ill, J

C. M. & R. 410. Humphj jy v. Lucas, 2 Car. &, K. 152.

{b) Coates v. Lewis, 1 Camp. 444. See this doctrine clearly stated in Sims v

Bond, 5 B. & Adol. 393, and see Bastable v. Poole, 5 Tyrwh. 111. 1 C. M. & R. 410-

204 MERCAXTILE PERSONS. "j^ ^

Eights of the Principal against third Parties. * ^Jl f*'''^'

factor dealing for a principal, but concealing that principal, delivers

• goods in his own name, the person contracting with him has a right

to consider him to all intents and purposes the principal, and,

though the real principal may appear and bring an action on that

contract against the purchaser of the goods, yet that purchaser may

set off any claim he may have against the factor, in answer to the

demand of the principal, (c) This rule is to prevent the hardship

under which a purchaser would labor, if, after having been induced

by peculiar considerations, such for instance, as the consciousness of

possessing a set-off, to deal with one man, he could be turned over

and made liable to another, to whom those considerations would

not apply, and with whom he would not willingly have contracted.

But if, at any time in the course of the transaction, he have means

of knowing that the person with whom he deals is not a principal,

the above reason does not apply, and then cessante ratione cessat