M. O. Blount has not been made a party to this action, in accordance with the prayer of defendant, J. R. Manning. After the jury was empaneled, plaintiff' moved to strike out from the answer and further defense all allegations contained therein as to transaction between defendant and said M. O. Blount. This motion was denied, and plaintiff excepted. Plaintiff also excepted to the issues as submitted to the jury for that' same do not arise upon the pleadings. Its 17th assignment of error is based upon this exception.

Defendant does not allege in his answer jEat M. 0. Blount was agent of plaintiff, or that he delivered the eight bales of cotton to Blount as such agent.. He admits in his answer that he executed the note set out in the complaint and offered in evidence by plaintiff; he alleges that at the time he signed the note, he did not know that it was payable to E. S. Royster Guano Company; that he was not indebted to Royster Guano Company, but was indebted to M. O. Blount for the amount of the note, as balance due him. He testified as a witness that he delivered the cotton to Blount, about 1 January, 1921, prior to the execution of the note payable to plaintiff, and had the agreement with Blount as alleged at the time of the delivery of the cotton; that Blount thereafter, on the date of the execution of the note told him that he had to get a note for the plaintiff; that defendant then signed the note. Defendant does not allege that he has paid anything on the note to the plaintiff, or to any one for plaintiff. The note is negotiable in form, and plaintiff is the holder thereof; there is no allegation that plaintiff had any notice of the storage of cotton with Blount, or of any agreement with Blount as to the application of the proceeds of the sale of the cotton to the payment of the note.

The matters set up in the answer do not constitute a defense to the action by plaintiff, certainly, without allegation that Blount was agent of plaintiff, with authority to make the agreement, as alleged. Plaintiff’s exception to the issues as submitted should have been sustained. *425 There was error in the submission of issues, determinative of the rights of the parties, which do not arise upon the pleadings. Other assign-. ments of error need not be discussed, for they are based chiefly upon exceptions to evidence or instructions applicable to the fifth issue, involving the question of agency.

When this appeal was called for argument, defendant moved in this Court for leave to amend his answer by striking out paragraphs 6 and 7 thereof, and substituting in lieu thereof the following:

“That when he purchased the fertilizer he thought he was purchasing it from M. 0. Blount, but has since learned that M. 0. Blount was the agent of E. S. Eoyster Guano Company and sold said fertilizer to said defendant as such agent; that defendant did not know at the time that the note was payable to E. S. Eoyster Guano Company, as he did not read it, but has since learned that -it was so payable and he now admits the signature to said note in the light of these facts.”

This motion is denied. The controversy between the parties to this action should be submitted to a jury upon evidence relevant to issues raised by the pleadings. The motion to amend the pleadings may, of course, be made in the Superior Court before trial of the action without prejudice from the denial of the motion in this Court. It will then be heard and disposed of, as the court may deem just to both parties. There must be a

New trial.