Foster v. Graham

Field, C. J. In Barry v. Page, 10 Gray, 398, it is said: “ As the contract of an agent is in law the contract of the principal, the latter may come forward and sue thereon, although at the time the. contract was made the agent acted as and appeared to be the principal. There is a qualification of the rule, by which it is held that when a contract has been made for an undisclosed principal, who permits his agent to act as apparent principal in the transaction, the right of the former to intervene and bring suit in his own name is not allowed in any way to affect or impair the right of the other contracting party, but he will in such case be let in to all' the equities, set-offs and other defences to which he would have been entitled, if the action had been brought in the name of the agent.” It would have been competent for the jury in the present case to infer, from the evidence of the plaintiff contained in his deposition, that the plaintiff owned the laths, and intended to sell them to the defendants through Marshall, who volunteered to act for the plaintiff in the transaction, and there was abundant evidence that the laths were actually sold to the [205] defendants by Marshall. This is evidence that Marshall in fact acted as agent of the plaintiff in making the sale, although Marshall may have appeared to the defendants as the principal in the transaction. If Marshall were not indebted to the defendants it would be plain, we think, that there was evidence on which the plaintiff, as an undisclosed principal, might maintain the action to recover the price of the laths. The court, therefore, could not properly rule that the plaintiff could not maintain the action because no privity of contract between the parties was shown, and, as we construe the exceptions, this was the ruling of the court. The plaintiff declared on an account annexed; the defendants answered a general denial, and payment. There were no pleadings in set-off. Under the pleadings, therefore, no question of the right of the defendants to set off their claim against Marshall could properly arise, and it does not appear from the exceptions that any such question arose at the trial. Whether the circumstances were such that the defendants in this suit can avail themselves of the right of set-off of the indebtedness of Marshall against the plaintiff, we cannot now determine. See Stinson v. Gould, 74 Ill. 80 ; Bernshouse v. Abbott, 16 Vroom, 531; Wright v. Cabot, 89 N. Y. 570. Under the answer of payment the burden was on the defendants, and if by payment is meant that the defendants, with the consent of Marshall, received the laths at a price agreed upon in part payment of Marshall’s indebtedness to them, their right so to apply the price depends upon much the same considerations as their right to set off Marshall’s indebtedness against the plaintiff’s claim. Exceptions sustained.