70 Conn. 733 | Conn. | 1898
The contract of an agent within the scope of his authority and for the benefit of his principal, is generally enforceable by the latter only, and in the same manner as if made by him in person. But a third party, though dealing with an agent who is acting within the limits of his power and for the benefit of his principal, is not compelled against his own wishes to contract with either a known or unknown principal. He may in such cases contract with the agent in his personal capacity, to the exclusion of the principal, and when it is clearly shown, either from the terms of the agreement or by the attendant circumstances, that the contract was exclusively with the agent personally, the principal does not become a party to the contract and cannot sue upon it in his own name. Story on Agency, §423; Mechem on Agency, § 771; Humble v. Hunter, 12 Q. B. 310; Winchester v. Howard, 97 Mass. 303.
When an agent, within the limits of his authority and for the benefit of his principal, enters into a contract not under seal, with a third person, either without disclosing the fact of his agency, or, if that fact be disclosed, without disclosing the name of his principal, as a general rule suit may be instituted by either the agent or the principal for the enforcement of such contract. But as the reason of the rule which •permits the principal to sue in such cases in his own name, is that he is entitled to the ultimate benefit of the contract made by his agent, so in seeking to recover that benefit he must assume the position of the agent whose contract he is enforcing, and the action so instituted by him is open to the defenses which might have been interposed to a suit commenced by the agent at the time the principal first sought to enforce the contract. Story on Agency, § 340; Mechem on Agency, §§ 769-773; Sims v. Bond, 5 B. & Ad. 389; Ford v. Williams, 21 How. U. S. 287; Ilsley v. Merriam, 7 Cush. 242; Huntington v. Knox, ibid. 371; National Life Ins. Co. v. Allen, 116 Mass. 398; Ludwig v. Gillespie, 105 N. Y. 653.
The right of the principal to sue upon a contract made by an agent without disclosing his principal, was recognized by this court in Sutton v. Mansfield, 47 Conn. 388.
The law will not, however, extend to an undisclosed principal the right to perform himself the executory contract of his agent which involves a personal trust or confidence imposed in the latter by the other contracting party. But if a contract so made by a third party in consideration of the-personal character, ability or skill of the agent, has been fully-performed by the latter, or if performance by the principal has been accepted, there would seem to be no reason why the undisclosed principal should not be entitled to enforce-by an action against the third party, a performance by him, of his part of the contract. Mechem on Agency, § 770; Boston Ice Co. v. Potter, 123 Mass. 28; King v. Batterson, 13 R. I. 117; Eggleston v. Boardman, 37 Mich. 14.
From the finding of facts in the case at bar, it appears-, that McKenna, as an agent of the plaintiff, but without having disclosed either the name of his principal or the fact of his agency, contracted as an apparent principal with the defendant to furnish materials and render services in the construction of certain buildings. The undertaking of Mc-Kenna has been fully performed, but the sum due from the
There was error in the ruling of the court that the plaintiff was not a party to the contract made by McKenna with the defendant, and a new trial is granted.
In this opinion the other judges concurred.