If he does not disclose the name of his principal at the time

of making the contract.

9. An agent is exclusively entitled and liable upon a

<;ontract who, though describing himself as an agent, but

without naming a principal, is in reality himself the prin-

cipal ; and it seems that even though the professing agent

names a principal, he will still be exclusively entitled

and liable, if the other party, though knowing who the

real principal is, nevertheless partly performs, or accepts

part performance, of the contract.

Schmaltz v. Avery (1851), 16 Q. B. 665 ; in this case

the plaintiff sued upon a charter-party which was ex-

pressed to be made between the defendant as owner of

the ship of the one part, and " G. Schmaltz and Company,

agents of the freighter, of the other part." It was held that

the plaintiffs, who were really the principals, were entitled

to sue. Patterson, J., delivering the judgment of the Court,

said ; " A passage in the judgment of the Court in Bayner

V. Grote (1846), 15 M. & W. 359, was much relied upon:

" If indeed the contract had been wholl}'' unperformed, and

one which the plaintiff' by merely proving himself to be

the real i)rincipal was seeking to enforce, the question

might admit of some doubt. In many cases, such as for

instance the case of contracts in which the skill or solvency

of tlic poison wl)0 is naux'.d as the ])rineipal may reasonably

be considcr(!d as a material iii'Tcdiciit in the contract, it

EIGHTS AND DUTIES OF PRINCIPAL AND AGENT. 107

is clear that the agent cannot then show himself to be

the real principal and sue in his own name : and perhaps

it may be fairly urged that this, in all executory contracts,

if wholly unperformed, or if partly performed, without the

knowledge of who is the real principal, may be the general

rule." With this passage we entirely agree ; but it is

plain that it is applicable only to cases where the supposed

principal is named in the contract ; if he be not named

it is impossible that the other party can have been in

any way induced to enter into the contract by way of the

reasons suggested."

Carr v. Jackson (1852), 7 Ex. 382, & 21 L. J. Ex. 137 ;

in this case it was held that if a person describes himself

in a written contract as an agent for an unnamed principal,

he is himself liable upon the contract, if proved to be the

real principal ; and it is permissible for the other party

to adduce parol evidence to show that the professing agent

is the real principal.

Bayner v. Grote (1846), 15 M. &. W. 359; in this case

the plaintiff entered into a written contract for the sale

•of goods, in which he described himself as an agent for a

named principal, whereas he was himself the real principal.

The other party, although he knew that the professing

agent was himself the principal, accepted part delivery

•of the goods from him as such. The Court held that under

these circumstances the plaintiff could himself sue for the

non-acceptance of the residue of the goods, and for non-

payment of the stipulated price.