At the close of plaintiff’s evidence the defendant made a motion in the court below for judgment as in case of nonsuit, C. S., 567. The court below sustained this motion, and in this we think there was error.
*480“It is the well-settled rule of practice and accepted position in this jurisdiction that, on a motion of nonsuit, the evidence which makes for the plaintiff’s claim and which tends to support her cause of action, whether offered by the plaintiff or elicited from the defendant’s witnesses, will be taken and considered in its most favorable light for the plaintiff, and she is ‘entitled to the benefit of every reasonable intendment upon the evidence, and every reasonable inference to be drawn therefrom.’ ” Nash v. Royster, 189 N. C., at p. 410.
We think there was sufficient evidence to be submitted to the jury. In the contract is the following: “McGee agrees to relinquish all his rights, title, and interest in and to the said patent application, Serial Number 172,478, and to execute an assignment thereof to the said Eroh-man upon the execution of this contract and the payment of the initial sum of two thousand five hundred dollars ($2,500.00), and to relinquish all his rights, title, and interest, in and to the business which the parties hereto have built up and operated under, and the name of the firm being known as the Textile Roller Lubricating Device Company, and the said McGee hereby sells, assigns, and transfers all his rights, title, and interest in and to all equipment, materials, and supplies now on hand; the said McGee also assigns and sells and transfers unto the said Erohman all his rights, title, and interest in and to all accounts receivable by the said Textile Roller Lubricating Device Company.”
The plaintiff testified, in part: “Mr. Frohman positively did not at any time deny or dispute his obligations under this contract. It was some time in September, 1929, that I went back to work for Mr. Eroh-man. He told me I was a valuable man, and I continued to work for him until December, 1932. During the time that I worked for him I made further demands1 on Mr. Erohman for payment of what was due me under my contract. On those occasions Mr. Erohman stated to me that he had not made any money yet, and as soon as he had some money that he would pay me what he owed me.”
, The second contention of plaintiff: If, in an action on a contract, the defendant pleads a counterclaim arising out of such contract, can the defendant withdraw his counterclaim over the objection of the plaintiff? We think not.
In Cohoon v. Cooper, 186 N. C., 26 (27-28), is the following: “There are two counterclaims that can be set up under C. S., 521, i.e., 521 (1) : ‘A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim, or connected with the subject of the action.’ Such counterclaim must not only exist at the commencement of the action, but as to this, when it has been pleaded a nonsuit cannot be taken. The defendant ‘is not obliged to set up such counterclaim. He may omit it and bring another action. He *481bas bis election. But wben be does set up bis counterclaim, it becomes a cross-action, and botb opposing claims must be adjudicated. Tbe plaintiff tben bas tbe right to tbe determination of tbe court of all matters brought in issue, and naturally tbe defendant bas tbe same right, and neither bas tbe right to go out of court before a complete determination of all tbe matters in controversy without or against tbe consent of tbe other.’ Francis v. Edwards, 77 N. C., 271; Whedbee v. Leggett, 92 N. C., 469; McNeill v. Lawton, 91 N. C., 20; Yellowday v. Perkinson, 167 N. C., 146.
“Tbe other ground of counterclaim, C. S., 521 (2), is ‘Any other cause of action arising also on contract and existing at tbe commencement of tbe action.’ As to such cause of action a nonsuit may be taken at any time before a verdict.”
In Insurance Co. v. Griffin, 200 N. C., 251 (254) : “In an action for tbe specific recovery of a horse, tbe defendant pleaded as a counterclaim that tbe plaintiff sold tbe horse to tbe defendant, and, at tbe time of tbe sale, warranted that it was sound, which warranty was false, and in consequence of which tbe defendant bad been damaged: Held, that tbe counterclaim arose out of tbe transaction set out in tbe complaint, and was properly pleaded as a counterclaim. Wilson v. Hughes, 94 N. C., 182.”
For the reasons given, tbe judgment of tbe court below is
Reversed.