It does not appear from the report of the referee whether the contract alleged to have been made by James F. Bryant, as agent of the plaintiff; was in writing or not. The defendant's counsel claims that the contract for the lease of the house land was in writing, and that the agent in his written contract not only did not disclose his agency, but did in writing represent himself to be the owner of the property. This does not now appear to be one of the facts in the case.
The action appears to be in the ordinary form for the use and occupation of real estate. There is no special declaration upon the contract, but it was a simple declaration for use and occupation. The contract, such as it was, whether written or oral, or partly written and partly oral, was used as evidence. The case of Elkins v. Boston Maine Railroad, and cases cited, Huntington v. Knox, 7 Cush. 371, Fenly v. Stewart, 5 Sandf. 101, and 1 Pars. on Con., ch. 3, sec. 4, are authorities to show that under such circumstances the action may be brought by the principal, although his name was not disclosed when the contract was made.
There seems to be a considerable disagreement in the cases, but I think that to this extent there is a substantial agreement, and it appears to me, therefore, that the action is rightly brought in the name of the principal.
Neither do I see any foundation for the objection that the title of the plaintiff is not made sufficiently apparent. It appears that she held two thirds of the premises by virtue of a mortgage, and that she was in possession for condition broken. The defendant does not appear to have been disturbed in his possession as her tenant.
It is said, however that the contract is an entire contract, the rent *Page 155 being an entirety, and that the contract being with the plaintiff and Cummings, they must be joined in the suit. The plaintiff accedes to this view, and asks leave to amend by making her co-tenant a party plaintiff. On the authority of the case cited by my brother LADD, it appears that this arrangement may be made on such terms in regard to costs as may be determined by the circuit court. This being done, I see no reason why the plaintiffs may not maintain their action.