majority">Mr. Ohief Justice Shepard

delivered the opinion of the Court:

1. The first contention of the appellant is that the judgment is erroneous because the contract was signed by the defendant as agent for a known principal, and the following cases are relied on: Whitney v. Wyman, 101 U. S. 392— 396, 25 L. ed. 1050-1052; Metcalf v. Williams, 101 U. S. 93-97, 26 L. ed. 665-667. Those cases hold that where a contract, not under seal, is signed by a party as agent for another, it becomes a question of intent whether he bound himself or a known principal; where the principal is disclosed and the agent is known to be acting as such, he cannot be made liable personally unless he agreed to be so. Nor is it essential that there shall be a recital of the principal’s name in the instrument, if the other contracting party knows that he is acting for a principal, and who that principal is.

The difficulty lies in applying this doctrine to the facts of the case. Assuming for the purpose of the case what does not clearly appear, that plaintiff at the time of the execution of the contract knew who the owners of the property were, and that defendant was authorized to and intended to bind them, they also knew that he was one of the owners, and therefore intended to bind himself as one of them. Necessarily he was properly made a defendant; and the question resolves itself into this: Should the other owners, whom he represented, have been joined with him as defendants? No such question was presented by plea or affidavit, as it should have been, and is not in the case.

*3462. The plaintiff contracted to receive and pay for, and the defendant contracted to convey the property “with a good record title.” This meant a regular fee-simple title duly exhibited upon the record of deeds, free from encumbrances, including conditions and covenants restricting the free use and enjoyment of the property by the owner. The covenants shown by the record as running with and binding the title were of this description. When disclosed by the contemplated examination, the plaintiff had the right to declare the sale off, and demand the return of the money deposited. The vendor is bound to have known the condition of his own title, and it was his duty to disclose the same before entering into the contract, and give the plaintiff the opportunity to agree to take it in that form, or to end the negotiation; or else to proceed to obtain a release of the conditions.

Based upon the proposition that it was the duty of the plaintiff to show that the title was not good of record, the defendant objects now that the certificate of the Title Company was not competent evidence of this. But the question is not one of the competency of the evidence. The plaintiff was under no obligation to make formal proof of his cause of action. He availed himself of the privilege conferred by the 73d rule to demand a summary judgment without trial, and without proof other than the recitals of the affidavit supporting his declaration. The defendant could only have had a trial of the issue by filing an affidavit of defense, which he failed to do.

The further contention is made that the restrictive covenants did not, in fact, impair the actual value of the title, and render it unmarketable. The plaintiff contracted, as we have seen, not for a marketable title, — whatever that may mean, — but for one good of record. Nor would we be prepared to say, were the question before us, that the value was not substantially affected by the conditions attached to the use and enjoyment of the property, or that the plaintiff could be compelled, upon any evidence relating thereto, to accept the title as complying with his contract. It is sufficient to say that the question is *347not before us, the defendant having failed to avail himself of his opportunity to raise it by plea, and defensive affidavit.

The judgment was right, and will be affirmed, with costs.

Affirmed.

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