Ewing

Neither party to this appeal has given us any statement of the case. We have, therefore, been put to the labor of going through the pleadings, findings, etc., to get as best we could an understanding as to what the controversy is about. As near as we have been able to ascertain from the record before us, the action is brought by plaintiff to recover on a certain contract, alleged to have been entered into between plaintiff and a copartnership doing business in Imperial County, this state, under the firm name and style of Hayward, Rath Marshall, which copartnership, according to the allegations of the complaint, was and still is the local agent of appellant, the Newmark Grain Company. The contract referred to reads: "No. 54. Store and Field Confirmation and Purchase. May 11th, 1918. We, the undersigned, have this day entered into the following agreement, namely, to buy and sell the following named commodity: (Approximately) 800 sacks No. 1 feed barley, price $2.85 per cwt., 45# to bu., f. o. b. cars Rockwood, Calif. Terms, cash on delivery of grain. Certified public scale tag weights to govern. Seller agrees to furnish loader's affidavit as to the number of sacks loaded into car or…

I concur in the judgment. Plaintiff who is seeking to hold the Newmark Grain Company liable as an undisclosed principal, is not entitled to a judgment against that defendant and the other defendants also. [5] When one party to a contract deals with another as principal and afterward discovers that such party was in fact agent for an undisclosed principal, he may elect to hold either the agent, or, upon discovery, the principal; but he cannot hold both. The agent is liable because credit was originally extended to him in the belief that he was acting for himself. The undisclosed principal is liable on the theory that, having received the benefit of the contract made by his agent, he should assume its burdens. There is but one contract upon which the plaintiff in such an action can bring suit. The person with whom such plaintiff has directly contracted, the agent of the undisclosed principal, may be held liable on the contract as the real obligor, for he contracted in that capacity. Or, if the plaintiff in such an action so choose, he may treat the contract as the obligation of the undisclosed principal for whose benefit it was made, notwithstanding that, on the face of the…