AGENCY-ELECTION TO SUE UNDISCLOSED PRINCIPAL OR AGENT

Plaintiff brought action against a principal and his agent to foreclose a mechanic's lien on the principal's real property, alleging that he had expended labor and materials in the improvement of the principal's land pursuant to a contract between himself and the agent. Though plaintiff joined the agent as a party defendant, he did not pray for relief against him. Both defendants moved to dismiss the action. Held, action dismissed as to the agent.

Whether or not the principal was disclosed at the time the contract arose, the action was properly dismissed as against the agent. If the principal was disclosed, the agent was not liable on the contract; and if the principal was undisclosed, the creditor had to elect whether to proceed against the agent or the principal. Failure to seek relief against the agent constituted an election to sue the principal. Campbell v. Murdock, (D.C. Ohio 1950) 90 F. Supp.

297.