Barham v. Bell

112 N.C. 131

Opinion

Shepherd, C. J.:

“ It is a well established rule of law that when a contract, not under seal, is made with an agent in his own name for an undisclosed principal, either the agent or the principal may sue upon it, the defendant in the latter case being entitled to be placed in the same position, at the time of the disclosure of the real principal, as if the agent had been the real contracting party.” Ewell’s Evans on Agency, 379; Story on Agency, 420; Wharton on Agency and Agents, 403; Am. & Eng. Enc., 425.

It is manifest from the foregoing authorities that his Honor erred in charging the jury that the plaintiffs could not sue upon the contract made by their agent, Stevenson, with the defendant. It is insisted, however, that inasmuch as the plaintiffs were residents of the State of Virginia, they were foreign principals and therefore not within the principle above mentioned. We do not regard it as entirely settled that a foreign principal cannot maintain an action upon such a contract; but, however this may be, it seems clear that, while the States of the American Union are in some senses foreign to each other, yet so far as concerns the reason of the rule asserted by the defendant, “they do not bear the same reciprocal relations as does one of these States to a transatlantic country.” Wharton, supra, 793; Taintor v. Pendergrast, 3 Hill, 72; Barry v. Page, 10 Gray, 398. There must be a New Trial.