This was an action by the sendee of a telegraphic message. The complaint contained four counts. A demurrer ivas sustained to the third and fourth counts for a failure to aver in said counts, that the sender of the'message acted as. the agent, or for the benefit of the plaintiff. The counts were then amended by averring the agency, after which the! demurrer being renewed, was overruled.
'The facts averred in the complaint set up a contract between the plaintiff and the defendant, and the plea ivas non-assumpist, and the issue was taken on this plea. Whether the alleged breach ivas willful or the result of negligence1, would not change the character of the action from one ex contractu, to one ex delicto. Moreover, .the parties tried the case, and the trial court so understod it and treated it, as; an action ex contractu. The plaintiff having tiled her case on one theory in the court below, will not be permitted on appeal for the purpose of putting the trial court in error, to try her case on an entirely different theory.
The action being considered as one ex contractu, the only question raised by the assignments of error upon exceptions to parts of the oral charge of the. court, and on refusal to charge as requested by plaintiff in writing; is whether the principal may maintain an action for breach of contract made by the agent, the principal not having been disclosed at the time of the making of the contract. In the cases of Western Union Telegraph Co. v. Allgood, 125 Ala. 712, and Lucas v. So. R'y Co., 122 Ala. 529, it was held that an undisclosed principal could not recover damages for breach of contract made by the agent. These; cases followed and were based upon expressions contained in Daughtery v. A. U. Tel. Co., 75 Ala, 168; W. U. Tel. Co. v. Henderson, 89 Ala. 210; Kennon & Bro. v. Tel. Co. 92 Ala. 399, aud Tel. Co. v. Wilson, 93 Ala. 32. A reviews of these later cases leads us to the conclusion, that what was stated in those cases with regard to showing by the proof, that the agency was disclosed, was nothing more than dictum. Upon more mature *295consideration, we are not able to see any sufficient reason for holding, that a principal may not maintain an action on a contract made by his agent, though such principal be not disclosed in the making of the contract. The above cases are in conflict, in principle at least, with the cases of Bell v. Reynolds, 78 Ala. 511; City of Huntsville v. Huntsville Gas Co., 70 Ala. 191; and McFadden & Bro. v. Henderson et al., 128 Ala. 229. These: latter cases, we think, assert the correct rule, and the one which Ave are disposed to adhere to. The doctrine seelms to be not only the more reasonable rule, but also well supported by authority. We are, therefore, of the opinion that Avhat Avas said in the cases of Daughtery, Henderson, Kennon & Bro. and Wilson, supra, upon this question, should be disapproved, and the cases of Allgood and Lucas, supra, should be overruled.
It follows from this conclusion, that the court beIoav erred in those portions of the general charge excepted to, wherein the court instructed the jury that unless the agency was disclosed to the defendant at the time of the making of the contract, the plaintiff could not recover. And also, in refusing to give written charge No. 2 requested by the plaintiff. The judgment of the lower court will be reversed.
Keversed and remanded.