(d) Polhill v. Walter, 3 B. & Ad. 114; Randell v. Trimen, 18 C. B. 786; see above, pp. 739 - 742.

(e) Thomson v. Davenport, 9 B. & C. 78.

(/) Consider Hagedorn v. Oliver-son, 2 M. & S. 485; Foster v. Bates, 12 M. & W. 226; Watson v. Swann, 11 C. B. N. S. 756; Lyell v. Kennedy, 11 App. Cas. 437, 456: Keighley v. Durant, 1901, A. C. 240, 251, 254, 255; Boston Fruit Co. v. British, Sec.c. Insce. Co., 1905, 1 K. B. 637.

(g) Above, p. 977.

(h) Lennard v. Robinson, 5 E. & B. 125: Hough v. Manzanos, 4 Ex. D. 104, 106; Bowen, J., Irvine v. Watson, 5 Q. B. D. 102, 107; Hutcheson v. Eaton, 13 Q. B. D. 861, 865, 868.

(i) Higgins v. Senior, 8 M. & W. 834; Willes, J., Calder v. Dobell, L. R. 6 C. P. 486, 493, 495; see above, p. 698.

(k) Southwell v. Bowditch, 1 C. P. D. 374; Gadd v. Houghton, 1 Ex. D. 357.

(l) Schmaltz v. Avery, 16 Q. B. 655.

(m) Carr v. Jackson, 7 Ex. 382.

In case (3), where a person, who afterwards professes or is alleged to be an agent, ostensibly contracted on his own account, and the memorandum contains no reference to any other person as principal or to the fact of the contractor's agency, he is liable upon and can enforce the contract; and he is not at liberty to prove by parol evidence, so as to avoid his liability on the contract, that he was in truth acting as agent for some principal, and that it was agreed that the principal, and not the agent, should undertake the burthen of the contract (o). Nor can the other contractor put in such parol evidence to bar the agent's right to sue upon the contract (p). But if the one contractor did in fact make the contract as agent for some principal who had authorised him to make it, the principal may, as a rule, sue (q) or be sued (r) on the contract, and the facts necessary to establish his right or liability may be proved by parol evidence. For such evidence does not contradict or alter the written agreement, but merely adds something to it (s). If, however, the terms of the contract were inconsistent with the existence of any undisclosed principal, as where an agent employed to sell land contracts in words, which represent him to be the owner of it, the principal can have no right or liability under the agreement (t). And if the principal by words or conduct represented to the other contractor that the agent was contracting or was in a position to contract as principal, he is estopped from alleging that the agreement was made by the agent on his behalf (u). Where the contract was made under seal, the principal cannot be sued thereon; nor can he sue to enforce it (x), except as cestui-que-trust in the agent's name (y). If the undisclosed principal claim to enforce the contract, he can only do so subject to all equities existing between the agent and the other contractor (z); he is therefore liable, if he sue upon the contract, to be met with any defence (such as a set-off) which would have been available in an action brought by the agent (a). It has been held, however, that this right of the other contractor, to be placed in the same position as if he were being sued by the agent, depends on his having been induced to believe that the agent was acting on his own account; and if he did not enter into the agreement in the positive belief that the agent was contracting as principal, he cannot set up as a defence to an action, brought by the principal on the contract, any set-off or other claim available against the agent alone (b). Where a contract is made by an agent on behalf and by the authority of an undisclosed principal, and the agent as well as the principal is liable on the contract (c), their liability is, as a rule, alternative (d); and it is in the election of the other contractor, after discovering the principal, to sue either the principal or the agent in respect of the agreement. But election to charge the principal on the contract must he made within a reasonable time after his discovery (e). This election once made is irrevocable (f), but it is not in general finally signified until the one or the other of them has been sued to judgment (g). If, however, the other contractor have by words or conduct induced the principal to believe that he has given credit to the agent exclusively for the performance of the contract, and the principal have acted on this belief by settling with the agent in respect thereof, or otherwise altering his position, the other contractor is estopped from suing the principal on the agreement (h). And if the other contractor sue the principal on the contract, the principal cannot plead in defence that he put the agent in funds or otherwise provided him with the means of performing the contract, unless the other contractor had by words or conduct induced the principal to believe that he had settled with the agent in respect of the agreement (i). Where a man has contracted ostensibly on his own account, not assuming to act as agent for any principal, and had no authority from any principal to make the contract, another person cannot afterwards ratify the agreement as principal, so as to become entitled to enforce or liable to perform it; and the alleged agent alone can sue or be sued thereon (k).

Where the memorandum neither discloses any principal's name nor the fact of agency.

Contract inconsistent with the existence of an undisclosed principal.

Representation by the principal that the agent is a principal.

Contract made by deed.

(n) See cases cited above, p. 980, n. [c); and Cherry v. Colonial Bank of Australasia, L. R. 3 P. C. 24, 31.

(nn) Above, p. 980.

(o) Above, p. 981, n. (i).

(p) Higgins v. Senior, 8 M. & W. 834, 844.

(q) Bateman v. Phillips, 15 East, 272; Garrett v. Handley, 4

B. &C. 6G4.

(r) Paterson v. Gandasequi, 15 East, 62.

(s) Higgins v. Senior, 8 M. & W. 834, 844; Beckham v. Drake, 9 M. & W. 79, 11 ib. 315, 317; Calder v. Dobell, L. R, 6 C. P. 486; see above, p. 699, n. (s).