In the name of the agent, though the recovery will be

for the benefit of the principal.

140 Duties of third persons to agent. [в§в§ 263-265.

В§ 263. Contracts made without disclosing princi-

pal, etc. — So in other cases than those mentioned in the

preceding section, if the agent makes a contract without

disclosing his principal, or if he makes a written con-

tract in his own name, the action may be brought in the

name of the agent because it was made in his name.

See Deitz v. Insurance Co., 31 W. Va. 851, 8 S. E. Rep. 616, 13

Am. St. Rep. 909; Carter v. Southern Ry. Co., Ill Ga. 38, 50 L. R.

A, 354.

But in cases other than those referred to in the pre-

ceding section this right of action in the agent is usually

not exclusive. Because the contract was made for the

principal, he may ordinarily enforce in his own name

or permit the agent to sue. And where the principal

may sue (a matter to be discussed more fully in the

following chapter), his right is paramount, and he may

always sue to the exclusion of the agent, unless the

aeent had some beneficial interest in the contract.

See Rhoades v. Blackiston, 106 Mass. 334, 8 Am. Rep. 332, Cas.

Ag. 584; Rowe v. Rand, 111 Ind. 206, Cas. Ag. 257; Thompson v.

Kelly, 101 Mass. 291, 3 Am. Rep. 353, Cas. Ag. 653; Wilson v.

Groelle, 83 Wis. 530, 53 N. W. Rep. 900.

§264. What defences may be made.— When the

agent sues in his own name, the other party may ordi-

narily make any defence against the agent which he

may have, either against the agent or against the prin-

cipal in whose behalf the action is brought.

See Gibson v. Winter, 5 B. & Ad. 96; Gardner v. Allen, 6 Ala.

187, 41 Am. Dec. 45. Set off of claim against the principal cannot

be made if would defeat agent's right to reimbursement for ad-

Vances: Young V. Thurber, 91 n. Y. 388.

2. In Tort.

§ 205. "What actions maintainable. — The agent may

sue third persons in tort for injuries done by them to

property of the principal confided to the agent's posses-

В§265.] DUTIES OF THIRD PERSONS TO AGENT. 141

sion — certainly wherever he has a special property in

the goody, possibly in any case.

See Moore v. Robinson, 2 Barn. & Adol. 817, 22 Eng. Com. L. 344.

Compare I ick v. Jerome, 7 Cow. (N. Y.) 294; Pullman Car

Co. v. Gavin, 93 Tenn. 53, 23 S. W. Rep. 70, 21 L. R. A. 298.

He may also recover of third persons in tort for frauds

or deceits practiced by them upon him while he was en-

gaged in making contracts with them on the principal's

account, and which have rendered him liable to his prin-

cipal.

He may also recover of them for damages caused by

their wrongfully procuring his dismissal by his princi-

pal; and for slander or other wrong whereby they de-

prive him of his right to earn the stipulated compensa-

tion or commission.

Seo Lucke v. Clothing Cutters Assembly, 77 Md. 396, 19 L. R. A.

x08; Raycroft v. Tayntor, 68 Vt. 219, 33 L. R. A. 225; Whittemore

v. Weiss, 33 Mich. 318; Perkins v. Pendleton, 90 Me. 166, 38 Atl. Rep.

96, 60 Am. St. Rep. 252.

142 DUTIES OF THIRD PERSON TO PRINCIPAL. [§§ 266-267.

CHAPTER XVI.

OF THE DUTIES AND LIABILITIES OF THIRD PERSONS TO

THE PRINCIPAL.

В§ 266, In general.

1. In Contract.

267. What contracts principal

may enforce.

268. "What defences open.

269. Right to follow and recov-

er money or property.

В§ 270. Right to rescind unau-

thorized dealings.

2. In Tort.

271. Right to recover damages

for collusion.

272. Recovery for enticing

agent away, disabling

him, etc.

§ 266. In general. — The question of the duties and

liabilities of third persons to the principal, presenting

the same general aspects as the preceding ones, may be

considered under the same classification: 1. In Con-

tract, and 2. In Tort,

1. In Contract.

§267. What contracts principal may enforce. —

The principal may enforce against third persons all law-

ful contracts made in his own name with them by his

agent. This is, of course, the ordinary and familiar

case. Here the principal will be disclosed and the con-

tract will be made in his name and in his behalf.

He may also show himself to be the principal and

enforce contracts, whether written or unwritten, made

on his behalf with them by his agent, though he was not

disclosed at the time of the contract and the contract

was made in the agent's name, except in the cases men-

tioned in the preceding subdivision, namely, contracts

under seal and negotiable instruments payable to the

agent only.

§§ U67-269.J DUTIES OF THIRD PERSON TO PRINCIPAL. 143

See Huntington v. Knox, 7 Cush. (Mass.) 371, Cases on Ag. 587;