Opinion of the Court, by SEDGWICK, J. three days then spent, might delay the vessel until the coming on of a destructive storm. It would not change the conclusion to consider that Cow Bay was not a port. It was not within the port of Sydney. If the policy allowed only the use of that port, to depart from the direct voyage to New York was a deviation. I can not find any evidence tending to show that the bark was compelled to go into Sydney, by stress of weather or fear of disaster. She went in voluntarily for the convenience of the harbor only. Under the evidence, I think the learned judge was right in holding, that the want of a certificate from the American Ship Masters' Association did not prevent a recovery. There was but one inference to be drawn from the testimony on this point. The company dispensed with such a certificate, and received the premium after this. As we think there was a deviation, upon the present evidence, the judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event. SPEIR, J., concurred. Statement of the Case. EBENEZER S. B. BRIGGS AND MARY A. BRIGGS, PLAINTIFFS AND APPELLANTS, . THOMAS M. PARTRIDGE, ET AL., DEFENDANTS AND RE SPONDENTS. CONTRACT, UNDER SEAL AND OTHERWISE, EXECUTED BY THE AGENT OF UNKNOWN AND UNNAMED PRINCIPALEFFECT OF. In this state, many cases have been decided where it has been held, that when a contract not under seal has been made in writing by a person apparently acting on his own behalf, his unnamed and undisclosed principal may sue, and be sued upon the same, although the contract was required to be in writing by the statute of frauds, but the principle and rule of these cases fail, in the case of a contract under seal for the conveyance of real estate. An unnamed and undisclosed principal can not be made liable for a breach of such a contract, nor compelled to perform the same specifically, nor can he enforce the same. See the able opinion of the court in this case, for the review of numerous decisions upon this question. Before SEDGWICK and SPEIR, JJ. Decided May 3, 1875. Appeal from judgment dismissing complaint. This was an action for the specific performance by the defendants, the alleged vendees, of a contract for the sale of lands. The complaint averred that the plaintiff entered into an agreement in writing, "with one L. P. Hurlburd, who was acting for, and under the authority of .the defendant, whereby these plaintiffs sold, and the defendants through said Hurlburd bought" a certain described price of land, "for the sum of seven thous Statement of the Case. and two hundred dollars, which said sum the defendants, through their agent the said Hurlburd, agreed to pay as follows: one hundred dollars on the signing of the agreement of sale aforesaid, three thousand two hundred dollars by assuming a certain mortgage then subsisting on said property, and the balance in cash. before the execution and delivery of a deed by these plaintiffs to the defendants;" that it was further agreed that the plaintiff's should deliver the deed, and that the defendants should accept the same, and pay the balance of the purchase money on the first day of February, 1874; that the defendants through said Hurlburd, paid on the delivery of the agreement one hundred dollars; that on the said first day of February, 1874, the plaintiffs were "ready to carry out on their part the agreement aforesaid, by executing and delivering to said Hurlburd, for and on account of said defendants, a good and sufficient deed of the premi ses herein before described," whereas the defendants wholly failed on their part to fulfill said agreement, or to take title to said property, but on the contrary refused, and they have ever since refused so to do; and the plaintiff demanded judgment that the defendants perform said agreement, and pay to plaintiffs the sum of three thousand nine hundred dollars. The answer contained a general denial of the allegations of the complaint. The action came on for trial at special term. Plain tiff's counsel, in opening the case, said that the agree ment on which the plaintiff relied was in writing; that it was made by the plaintiff as vendor, and Llewellyn P. Hurlburd as vendee; that the written instrument did not show but that Hurlburd was a principal party; that it was signed and sealed by Hurlburd individually; that the name of defendant Partridge did not appear in the instrument, but that plaintiff would prove that the said Hurlburd was acting solely for and under the di Opinion of the Court, by SEDGWICK, J. rection of Thomas M. Partridge, who paid, or caused to be paid, the first payment under the contract; that said Hurlburd was the agent and trustee of said Partridge in the transaction, and that the authority given by Partridge to Hurlburd was oral. On their opening and on the complaint, the defendant's counsel moved to dismiss the complaint on these grounds: 1st, that the facts stated in the opening and by the complaint did not constitute a cause of action; 2d, that it was not competent to vary the terms of the written coutract, by parol proof that the party who executed the same as principal was not a principal, but an agent. The plaintiff's counsel asked leave to put in his testimony for the purpose of proving this cause of action, and also of moving "if necessary for a reformation of the written agreement to enforce which the action had been brought." The court refused to give this leave. The plaintiff's counsel offered to prove that Hurlburd was constituted, by parol, agent to enter into and execute the contract in behalf of the defendant Partridge; that at the time the contract was made, the plaintiff did not know that Partridge was the real principal; that the plaintiff tendered a deed to Hurlburd, and did not at that time know that Partridge was the real principal." Thereupon the complaint was dismissed, and exception taken. Edward D. McCarthy, for appellant. Wm. F. Shepard, for respondent. BY THE COURT.-SEDGWICK, J.-There can be no doubt that in this state many cases have considered it law, that when a contract not under seal has been made in writing by a person apparently acting on his own Opinion of the Court, by SEDGWICK, J. behalf, his undisclosed principal may sue and be sued thereon, and although the contract was required by the statute of frauds to be in writing. The reason of this rule, and the exceptions to it and its limitations, have not been much discussed. Another class of cases have held, that when the cause of action depends upon the written contract, oral evidence can not vary it so as to charge a person who is not a party to it, by proof that he was the principal in fact of the party to it. The reasoning had in Fenley v. Stewart (5 Sandford Sup'r Ct. 101) to support this conclusion has not been, as far as I know, disapproved by any case in the court of appeals. But, in my view, it is not necessary for us to decide that these cases required a reversal of the present judgment, because, 1st, the judgment below must be sustained by authority applicable to this particular case; 2nd, the reason of the rule that sustains an action against an unknown or unnamed principal upon a contract in writing made by his agent, apparently in his own behalf, and affecting personal property, fails in the case of a contract for the conveyance of real estate. Townsend v. Hubbard (4 Hill, 351), in the court of errors, sustains the present judgment. That case, like the present, had regard to a contract for the sale of real estate, under seal. The contract stated that it was made between certain parties of the first part by their attorney, as vendors, and the parties of the second part. The contract ended: "In witness whereof, the said Harvey Baldwin, as attorney of the parties of the first part, and the parties of the second part, have hereunto set their hands and seals," &c., and was signed, " Harvey Baldwin, (L. s.)." It was held that this was not the contract of the principal (although Harvey Baldwin was authorized by them to make a contract for them, and in their names under seal), so as to make a valid contract under the statute of frauds. The argument |