In contracts by deed no party can have a right of action under them but the party whose name is to them; (y) 2 but in the case of a simple contract an undisclosed principal may show that the apparent party was his agent, and may put himself in the place

(v) Paige v. Stone, 10 Met. 160; Ros-siter v. Rossiter, 8 Wend. 494. An assurance by an agent that bills will be accepted by his principal, though acted upon by the party assured, is not as between the latter and the principal to be treated as equivalent to an acceptance of the bills, so as to vest in the principal legal rights from the time such assurance is given. Hoare v. Dresser, 7 H. L. Cas. 290; Harrop v. Fisher, 10 C. B. n. s. 196. But see Layet v. Gano, 17 Ohio, 466; Forsyth v. Day, 46 Maine, 176.

(w) Bank of Pittsburg v. Neal, 22 How. 96. See Coburn v, Webb, 56 Ind. 96.

(x) Bank of Mobile v. King, 9 Ala. 279.

(xx) National Bank v. Fassett, 42 Vt. 432.

(y) Green v. Home, 1 Salk. 197; Frontin v. Small, 2 Ld. Raym. 1418; Pickering's Claim, L. E. 6 Ch. 525; Briggs v. Partridge, 64 N. Y. 357. [As to charter parties see Christofferson v. Hansen, L. E. 7 Q. B. 509; Pedersou v. Lotinga, 28 L. T. 267.] of his agent, (z) but not so as to affect injuriously the rights of the other party. (a) Thus a purchaser for an unknown principal, whom he does not disclose, is himself liable for the price. (aa) Nor can the unknown principal adopt a contract as made by his agent, in part only and for so much as benefits him; he must adopt it as a whole if at all. (ab) How far this rule is affected by the Statute of Frauds will be considered hereafter. (b) By parity of reasoning, an undisclosed principal, subsequently discovered, may be made liable on such contract; (c)1 but in general, subject to the qualification that the state of the account between the principal and agent is not altered to the detriment of the principal. (d) It might be supposed that the party dealing with an agent whose agency is concealed, does not lose his election to have recourse either to the agent, or to his discovered principal, if the principal has prematurely settled with his agent, even without fraud; as where the

1 The treasurer of a savings bank has no authority to indorse its name on a promissory note; and a vote of the corporation to sell notes held by it does not confer such authority. Bradlee v. Warren Savings Bank, 127 Mass. 107. - K.

- Bills of exchange and promissory notes, also, being, like deeds, formal instruments, give no rights and create no liabilities except in favor of and against the parties thereto. Cragin v. Lovell, 109 U. S. 194; Heaton v. Myers, 4 Col. 59; Pease v. Pease, 35 Conn. 131; Kenvon v. Williams, 19 Ind. 44; Brown v. Baker, 7 Allen, Keck v. Sedalia Brewing Co. 22 Mo. App. 187; Webster v. Wray. 19 Neb. 558; Nat. City Bank v. Westcott, 118 N. Y. 468; Texas Land Co. v. Carroll,' 63 Tex. 48: Arnold v. Sprague, 34 Vt. 402. This rule does not apply to non-negotiable notes. National Ins. Co. v. Allen, 116 Mass. 398.

(r) Skinner v. Stocks, 4 B. & Ald. 437; Cothay v. Fennell, 10 B. & C. 671; The Duke of Norfolk v. Worthy, 1 Camp. 3.37; Garrett v. Handley, 4 B & C. 664: Davis v. Boardman, 12 Mass. 80; Rutland Railroad v. Cole, 24 Vt. 33; Higgins v. Senior, 8 M. & W. 834; Whitmore v. Gilmour, 12 M. & W. 808; Gage v. Stim-son, 26 Minn. 64; Browning v. Provincial Ins. Co. L. R. 5 P. C. 263; Provincial Ins. Co. v. Leduc, L. R. 6 P. C. 224; Lovell v. Williams, 125 Mass. 439; Armstrong v. Stokes, L. R, 7 Q. B. 598; Irvine v. Watson, 5 Q. B. D. 102; Milliken v. W. U. Tel. Co. 110 N. Y. 403. See Oelricks v. Ford, 20 Md. 489. [And where a seal is not essential to a contract, it has been held that an undisclosed principal who has received the benefit of the contract may be held liable upon it. Moore v. Granby Mining Co. 80 Mo. 86; Stowell v. Eldred, 39 Wis. 614; of. Briggs v. Partridge, 64 N. Y. 357, 364.] agent bought on one month's credit and the principal paid him before the credit had expired.(e) But it may be open to question whether such settlement by the principal, although premature, if perfectly bona fide, in the course of business, and free from all suspicion that it had been hastened for the purpose of interfering with the seller, would not discharge the principal. We think it would.l

(a) George v. Clagett, 7 T. R. 359; Sims v. Bond, 5 B. & Ad. 389; Warner v. McKay, 1 M. & W. 591; Huntington v. Knox, 7 Cush. 371; Violett v. Powell, 10 B. Mon. 349. And see Harrison v. Roscoe, 15 M. & W. 231; Woodruff v. M'Gehee, 30 Ga. 158.

(aa) Pierce v. Johnson, 34 Conn. 274.

(ab) Elwell v. Chamberlin, 31 N. Y. 671. See ante, p. *52.

(b) And see p. note (r), supra. See also Bank of United States v. Lyman, 20 Vt. 666, 673, 674, where the doctrine of Lord Abinger and Baron Parke in Beckham v. Drake, 9 M. & W. 79, was recognized by Prentiss, J.

(c) Thompson v. Davenport, 9 B. & C. 78; Cothay v. Fennell, 10 B. & C. 671; Thomas v. Edwards, 2 M. & W. 216; Beebe v. Robert, 12 Wend. 413; Upton v. Gray, 2 Greenl. 373; Nalson v. Powell, 3 Doug. 410; Hopkins v. Lacouture, 4 La. 64; Hyde v. Wolf, 4 La. 234; Bacon v. Sondley, 3 Strob. L. 542; Bownell v. Briggs, 45 Barb. 470. - The party dealing with the agent may, when he discovers the principal, charge either at his election. Thompson v. Davenport, 9 B. & C. 78; Wilson v. Hart, 7 Taunt. 295; Railton v. Hodgson, 4 Taunt. 576, n. (a); Robinson v. Gleadow, 2 Bing. N. C. 161; Paterson v. Gandasequi, 15 East, 62; Higgins v. Senior, 8 M. & W. 834. But where a vendor takes the note of the agent, which shows him to rely upon the agent, he cannot afterwards sue the principal. Patterson v. Gandasequi, 15 East, 62; Hyde v. Paige, 9 Barb. 150; Bate v. Burr, 4"Harring. 130.

(d) Thompson v. Davenport, 9 B. & C. 78; Lord Ellenborough, Kymer v. Suwer-cropp, 1 Camp. 109; Smethurst v. Mitch-all, 1 E. & E. 622.

1 In Hubbard v. Tenbrook, 124 Pa. 291, it was held that an undisclosed principal was liable for goods purchased by his agent on credit in His own name, though the principal had instructed the agent not to purchase on credit, the reason given for the decision being that the agent had apparent power to buy on credit. But see Fradley v. Hyland, 37 Fed. Rep. 49.

Where the name of the principal is disclosed at the time the contract is made by the agent, the former is the proper party to sue, upon the contract. This is so whether he be a citizen of another State than that where his agent resided and made the contract or not. This doctrine is contrary to the rule laid down in Story's Agency as to contracts made for residents in a foreign State, and which was supposed to be the doctrine of the English cases at that time. But the doctrine has more * re- cently been explained by the English courts, and Judge Story's rule rejected. The doctrine never was generally received in this country, and in the Supreme Court of the United States it was directly disavowed, (g)

(e) Kymer v. Suwercropp, 1 Camp. 109 ; Waring v. Favenck, 1 Camp. 85: Heald v. Kenworthy, 10 Exch. 739.

(g) Oelricks v. Ford, 23 How. 49. See also 2 Kent Com. 630, 631, n.; Allen v. Merchants Bank of N. Y. 22 Wend. 224.

1 The rule stated in the text is substantially that laid down by Lord Tenterden and Bayley, J., in Thompson v. Davenport, 9 B. & C. 78. The language in that case was, however, criticised and the rule limited in Heald v. Kenworthy, 10 Exch. 739, Parke, B., regarding it as immaterial whether the principal had in good faith settled with the agent, unless the conduct or representations of the third party with whom the agent dealt justified the principal in believing that the third party intended to look only to the agent. In Armstrong v. Stokes, L. R. 7 Q. B. 598, the Court of Queen's Bench, Blackburn, J., delivering the opinion, approved the rule of Lord Tenterden, and criticised that laid down in Heald v. Kenworthy. In Irvine v. Watson, 5 Q. B. D. 102, Bowen, J., distinguished two classes of cases. 1. Where the third party dealt with the agent, supposing him to be a principal. 2. Where the agent disclosed the fact that he was acting for a principal, but did not disclose the latter's identity. In the first class it was held that the rule of Lord Tenterden was correct, and such was the case of Armstrong v. Stokes. In the second class, it was said, the third party dealt with the agent on the credit in part, at least, of an unknown principal, and was entitled to retain that advantage, unless he estopped himself by his own conduct or representations. Such was the case at bar. In the Court of Appeals, 5 Q. B. 1). 414, the decision below was affirmed, but some doubt was expressed as to the correctness of the decision in Armstrong v. Stokes, and of the rule which Bowen, J., founded upon it; Brett, L. J., saying : "If the case of Armstrong v. Stokes arises again, we reserve to ourselves, sitting here, the right of reconsidering it." Davison v. Donaldson, 9 Q. B. . 623, followed i\ iue v. Watson, and approved the rule laid down by Parke, B., in Heald v. Kenworthy. How the court would have been inclined to deal with a case like Armstrong v. Stokes was left somewhat in doubt.

Such authority as there is in this country is in accord with the text and the dictum of Lord Tenterden. See Fradley v. Hyland, 37 Fed. Rep. 49 ; Ketchum v. Verdell, 42 Ga. 534, 538; Thomas v. Atkinson, 38 Ind. 248; Emerson v. Patch, 123 Mass. 541 ; Knapp v. Simon, 96 N. Y. 284.