The ruling of the learned judge at the trial was probably made upon the authority of some of the expressions used in the case of Wood v. Goodridge, 6 Cush. 117. But, without considering the precise accuracy of all the observations found in the opinion in that case, upon a point which was not necessary to its decision, we do not think it applicable to the case at bar.
*44The contract upon which this suit is brought was a contract not under seal, for the sale of personal property. It was not essential to its validity that it should be in writing. Some memorandum in writing, signed by the defendant, was originally requisite to enable the plaintiff to enforce it, under the statute of frauds; but the contract itself might have been oral Upon such a contract, if made by the agent in the name of the principal, without indicating the agency, the principal might be held, if he had afterward recognized and acted upon it. Merrifield v. Parritt, 11 Cush. 590. The oral contract between the parties, if the plaintiff’s signature was treated as a nullity would support his action.
But the defendant puts his case upon the ground that he supposed he was contracting with the agent personally, and that the signature which the agent affixed was his own name. If that were so, and this supposition were caused by any fraud or false pretence of the agent, it might follow that the agent would be personally bound by the contract, which he had made by the name of John S. Hunter. But the fact that the agent was personally held would not prevent an undisclosed principal from suing upon it. Eastern Railroad Co. v. Benedict, 5 Gray, 561 Sims v. Bond, 5 B. & Ad. 393. Huntington v. Knox, 7 Cush. 371. Lerned v. Johns, 9 Allen, 419.
If the fraud were of such a nature as to entitle the defendant to rescind the contract, and he undertook to rescind it on tha1 account, those facts should have been found by the jury, and could not be assumed by the court as the basis of a ruling that the contract was void. Exceptions sustained.