#### A. M. Hewitt v. Henry Torson.

1. Agent—when may maintain action in his own name. Where the agent Is the only known or ostensible principal he is, in contemplation of law, the real contracting party and may maintain an action on the contract in his own name.

Action of assumpsit. Appeal from the Circuit Court of Christian County; the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court at the November term, 1905.

Affirmed.

Opinion filed February 1, 1906.

J. O. and W. B. McBride, for appellant.

Hogan & Wallace, for appellee.

Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an action brought by appellee against appellant before a justice of the peace, to recover the sum of $49.02 claimed by appellee to be due him for threshing wheat and oats on appellant’s farm. Upon a trial in the Circuit Court, upon appeal, judgment was rendered against appellant for $65.24, to reverse which he appeals.

Appellant contends, and there is evidence tending to show, that the alleged contract for the threshing was made by ap*376pellant with appellee as agent for one Stockton, for whom appellee was operating a threshing machine and by whom he was being paid for his services at the rate of $2.50 per day, and that appellee had no interest of any kind in the proceeds or profits derived from operating the threshing machine; that appellee did thresh wheat and oats to the extent of $49.02, but that he failed and refused to thresh certain rye and timothy which appellant claims were included in the contract, and that in consequence of such failure said rye and timothy were damaged to the extent of $150. Appellee claims that he paid Stockton for the threshing done by him, and introduced in evidence a receipt purporting to show such payment. Appellant testifies however, that if any such payment was made, it was .without his knowledge or consent.

It is insisted by appellant that inasmuch as appellee made the contract in question as the agent of, for and in behalf of-Stockton, that Stockton was the real plaintiff, and that appellee had no right of action thereunder. Even if this be conceded, we are of opinion that there is no force in such contention. Stockton was at most an undisclosed principal and that fact does not relieve appellant from the obligation to pay appellee for the work done. Stockton is not claiming anything under the contract, and the evidence shows that he has been paid in ftill by appellee for the use of the threshing machine. “Where the agent is the only known or ostensible principal he is, in contemplation of law, the real contracting, party and may maintain an action on the contract in his own name.” Story on Agency, secs, 393, 160a, 372, 395, 396; 1st Addison on Contracts, sec. 75; Mills v. Jensen, 75 App., 644; Saladin v. Mitchell, 45 Ill., 79; Stockbarger v. Sain, 69 App., 436.

It follows that the trial court did not err in refusing to direct a verdict for appellant at the close of appellee’s evidence.

The evidence as to the terms of the contract is conflicting. Whether appellee agreed to thresh appellant’s rye and timothy was clearly a question of fact for the determination of the jury. They apparently adopted appellee’s version of *377the terms of the contract in preference to that of appellant, and we cannot say that their finding was so manifestly contrary to the evidence as to justify our interference therewith.

While several of the instructions are subject to criticism, we are satisfied that the jury were not influenced to the prejudice of appellant, by any error in the rulings of the court upon the instructions, and that another trial would result in a similar verdict and judgment.

The judgment will therefore be affirmed.

Affirmed.