## Facts

- Kelly Asphalt Block Company and Barber Asphalt Paving Company were competitors in the asphalt paving-block market.
- Kelly needed additional paving blocks and suspected Barber might refuse to quote or sell directly to Kelly because of their competitive relationship.
- Kelly arranged for Booth to purchase blocks from Barber in Booth’s own name, while Booth acted as Kelly’s undisclosed agent.
- Barber quoted a price to Booth, accepted Booth’s order, delivered the blocks, and received payment funded by Kelly.
- The blocks were defective and unmerchantable, and Kelly sued Barber for breach of implied warranty as the undisclosed principal.
- Barber argued that it would not have contracted had it known Kelly was the true buyer, and that the contract therefore should not be enforceable by Kelly.

## Issues

1. May an undisclosed principal enforce a non-sealed contract made by its agent in the agent’s name when the principal’s identity was intentionally concealed due to concern the other party would refuse to deal?
2. Does non-disclosure of the principal’s identity in these circumstances vitiate consent and render the contract void or voidable for mistake?

## Decision

- The New York Court of Appeals affirmed judgment for Kelly.
- Kelly, as an undisclosed principal, could sue Barber on the contract made in Booth’s name.
- The contract was not void or voidable merely because Kelly’s identity was concealed for competitive reasons.
- Barber remained liable on the implied warranty for delivering defective, unmerchantable goods.

## Legal Principles

- A non-sealed contract made by an agent as ostensible principal may be enforced by the real (undisclosed) principal at the principal’s election.
- Mere non-disclosure of the principal’s identity does not negate contractual assent where the other party received the agreed exchange (goods for price) and there was no fraud or misrepresentation as to the transaction’s terms.
- The identity of the contracting party bars enforcement by an undisclosed principal only when identity is a material element of the bargain (e.g., personal services, special reliance on personal credit or trust, or an express condition limiting the counterparty).
- A party cannot avoid an otherwise valid contract based solely on an after-the-fact assertion that it would have refused to contract had it known the principal’s identity, absent a legally material identity condition or fraud.

## Conclusion

The court held that an undisclosed principal may enforce a routine sales contract and related implied warranties despite intentionally concealing its identity for competitive reasons, because the seller’s assent was not vitiated absent fraud or a showing that the buyer’s identity was a material condition of the bargain.


Kelly Asphalt Block Co. v. Barber Asphalt Paving Co., 211 N.Y. 68, 105 N.E. 88 (N.Y. 1914)