Opinion by Mr.
Justice McIver,*601Plaintiff made a contract with Shepperd & Oo. to obtain for them orders for cotton-ties, at an agreed commission. One Nichols, acting in concert with Shepperd & Co., purchased the ties in England with funds obtained on a letter of credit furnished him by defendant, and they were consigned to defendant with bills of lading drawn to defendant’s order. Defendant reshipped to Charleston to its own order, with an understanding with Nichols that the ties were to remain the property of defendant until paid for. To the bills of lading on this second shipment were attached drafts of Shepperd & Co. on the parties in Charleston who had ordered them. These parties refused to pay, upon the ground that the ties were in bad order. Correspondence ensued between the defendant and its Charleston correspondent, which ended with storing the ties in a warehouse. The Circuit Judge (Hudson) granted a non-suit. On appeal, held—
1. That the judge erred in granting a non-suit; for while *602there may have been no testimony to show that Shepperd & Co. were in the outset agents of the defendant, there was some testimony tending to show an appropriation of the purchases procured by plaintiff and a recognition of plaintiff’s agency.
2. That judgment for plaintiff on the pleadings could not be directed, as his case rested on allegations of agency which were denied in the answer.
3. It is well settled in this State that the time when testimony may be introduced must be left to the discretion of the Circuit Judge, to be governed by the particular circumstances of each case, and that in some instances the courts have permitted a plaintiff to introduce other evidence even after a motion for a non-suit has been made and argued.
Judgment reversed.