Page:Harvard Law Review Volume 5.djvu/20

4 made would be a discharge to J. S. against the principal, yet the debt was not in law due to them, but to the person whose goods they were … and being paid to the defendant who had no right to have it, it must be considered in law as paid for the use of him to whom it was due." This explanation seems to show that Chief Justice Parker understood the law in the same way as Chief Justice Lee, and, if it be the true one, would show that Lord Holt did also. I think the inference is somewhat strengthened by other cases from the Salkeld MSS. cited in Buller's Nisi Prius. Indeed I very readily should believe that at a much earlier date, if one man's goods had come to another man's hands by purchase, the purchaser might have been charged, although he was unknown and had dealt through a servant, and that perhaps he might have been, in the converse case of the goods belonging to an undisclosed master.

The foregoing cases tend to show, what is quite probable, that the doctrine under discussion began with debt. I do not wish to undervalue the argument that may be drawn from this fact, that the law of undisclosed principal has no profounder origin than the thought that the defendant, having acquired the plaintiff's goods by way of purchase, fairly might be held to pay for them in an action of contract, and that the rule then laid down has been extended since to other contracts.

But suppose what I have suggested be true, it does not dispose of the difficulties. If a man buys B.'s goods of A., thinking A. to be the owner, and B. then sues him for the price, the defendant fairly may object that the only contract which he has either consented or purported to make is a contract with A., and that a stranger, to both the intent and the form of a voluntary obligation cannot sue upon it. If the contract was made with the owner's consent, let the contractee bring his action. If it was made without actual or ostensible authority, the owner's rights can be asserted in an action of tort. The general rule in case of a tortious sale is