In his own name, since parol evidence would l)e inadmissible

to vary the express terms and recitals of the written instru-

ment or to deprive the third person of the benefit he contem-

plated from the character, credit, and substance of the one with

whom he contracted.^ This is the result of a rule of evidence

merely. But where the real princii)al re])resents himself

as agent for an midisclosed principal, he may afterwards

assume his real character and sue as princijial, since in such

a case the third party has not relied upon the character, credit,

oi- substance of any person other than the agent.^

§ 134. Fifth exception. — Sealed instrument.

Where a sealed instrument names the agent alone as the

obligee, the principal cannot maintain an action upon it in his

own name, owing to the technical rule that only the parties

named or described in a sealed instrument can sue or be

sued upon it.^ He must proceed in the name of the agent.

§135. Sixth exception. —Negotiable instrument.

Only the party named as payee in a negotiable instrument

can sue upon it.^ This is due to the technical rule of tlie law

1 Pollock on Cont. (Gth ed.) 97; Eggleston r. Boardman, 37 Mich. U;

Kelly V. Thuey, 102 Mo. 522.

2 Warder v. White, 14 111. App. .50, citing Grojan iv Wade. 2 Staikie,

44.3; King v. Batterson, 13 R. T. 117; Sullivan r. Shailer, 70 Conn. 733.

8 Hunjble v. Hunter, 12 Q. B. 310; Darrow v. Home Produce Co., 57

Fed. llcp. 463.

* Schmaltz v. Avery, 10 Q. B. 055.

6 Shack V. Anthony, 1 M. & S. 573; Violett v. Powell, 10 B. Mon.

(Kv.) 347; post, В§ 188.

6 Cocke V. Dickens, 4 Yerg. (Tenn.) 2Q; Grist v. Backhouse, 4 Dev.

CONTRACT FOR UNDISCLOSED PRINCIPAL. 177

merchant which coMfines the rights and liabilities upon nego-

tiable instruments to the parties named or described therein.

But if there be any ambiguity on the face of the instrument as

to who is intended to be the payee, parol evidence is admis-

sible to remove the ambiguity. And, unlike the case of the

maker, drawer, or acceptor, the addition of a descriptive term

like "agent," "treasurer," "cashier," etc., is now generally

held to create such an ambiguity.^ The same reason docs not

exist for forbidding a person not named as payee to sue as for

forbidding a person not named as payor to be sued, namely,

that certainty is required as to the obligors on negotiable in-

struments in order that such instruments may circulate freely.

Accordingly the technical rule forbidding an unnamed payee

to sue lias dwindled to narrow limits, and has in some cases

been abandoned altogether.^

& Battle (X. C), 362; Moore v. Penn, 5 Ala. 135; United States Bk. v.

Lyman, 1 Blatchf. (U. S. C. C.) 297 ; s. c. 2 Fed. Cas. 709.

1 Baldwin r. Bank, 1 Wall. (U. S.) 234; Commercial Bank v. French,

21 Pick. (Mass.) 486; Nichols v. Frothingham, 45 Me. 220; Nave v. First

Nat. Bk., 87 Jnd. 204.

2 McConnell v. East Point Land Co., 100 Ga. 129; post, В§ 207.

12

i.

178 PRINCU'AL AND TllIKD I'AUTY.

CHAPTER XL

ADMISSIONS AND DECLARATIONS OF THE AGENT.

В§ 136. Object ill proving admissions of agent.

The admissions or declaration.s of ail agent may be sought to

be offered in evidence against the j>rincipal for any one of tliree

])urposes : (1) To establish ilie fact of tlie agency ; (2) to estab-

lish the nature or extent of the authority ; (3) to establish the ex-