Before evidence could be received that J. M. Edwards had collected the money on the check of Francis & Brother as the agent of the firm of W. J. & J. G. Edwards & Co., the agency had first to be established, aliunde the declarations, of J. M. Edwards himself; and it was incumbent on the Judge to determine whether there was a prima Jade ease of agency established, so as to render the acts and declarations of such person, the acts and declarations of those whose agent he is alleged to have been. Williams v. Wil *274liamson, 6 Ire. 281; Munroe v. Stutts, 9 Ire. 49. No such case of agency was established in this case and for several reasons :
1. The only partnership proved was by the evidence of Rogers, and that was between W. J. & J. G. Edwards in relation to the farm in Southampton, Virginia; whereas the only evidence offered to connect J. M. Edwards with this firm;,, was that of Atkins, but this evidence related only to the North Carolina farm, which belonged to W. J. Edwards. Therefore giving full force . to the declarations of J. M. in the presence of W. J. Edwards and taking the silence of the latter in respect thereto as an admission of all that was alleged by the declarant, the whole amount of it would be, that J. M. & W. J. Edwards were working the North Carolina farm as partners or in some other connection. But as the action is not against this firm, but another-W. J. & J. G. Edwards & Co.,-this evidence does not establish or tend to establish the alleged agency.
2. The silence of a party is not an assent to statements' made in his .presence,, unless the statements are made under such circumstances as properly call for a response. W. J. ' Edwards was under no obligation to admit' the loose and accidental statements of an intoxicated man,. They were made for no such purpose as to call for a denial, or to fix the two as partners by his silence. They accordingly seemed to have attracted little or no attention froro. the person addressed, and upon no rule of evidence do such declarations thus made, tend to establish a partnership even between J. M. & W. J. Edwards. Certainly they do not' touch or affect J. G. Edwards or the firm of which he was a member.
3. The language of J. M. Edwards was, “that he (W. J» Edwards) must go to the house and settle with the hands; that he was interested in it as well as he, (J. M, Edwards).’7 plow interested ? — One may be interestéd as a partner but *275that is not tlie only way. If W. J. Edwards had been an employee or overseer getting a part of the crop as wages, he would have been interested in seeing that the hands were paid and retained to finish, the crop as mnch as if he had been a partner. Where a declaration is made which is fairly susceptible of two constructions, and nothing else appearing to make one construction more probable than the other, it is not evidence to establish either alternative. If A is charged with an assault upon B and a witness testifies that, A made the assault either upon B or (J, such testimony by itself is inadmissible to established the guilt of'A. If J. M. Edwards had been sober and had made the specific statement in the presence of W. J. Edwards, that he was the agent or the partner of the firm of Wj. J. & J. G. Edwards & Co., the silence of the latter would have been evidence of the truth of the statement. The evidence relating to the payment of the plaintiffs’ check was therefore inadmissible to charge .the defendants and was properly ruled out.
Failing to make out their case, the plaintiffs next moved that they be allowed to take a non-suit and go out of Court. To this the defendants objected upon the ground that in their answer to the complaint, they had set up a counterclaim against the plaintiffs for the price of five bales of cotton belonging to them, which had been sold by the plaintiffs for $206.56, and the money for which had not been paid over to the defendants. His Honor gave judgment of non-suit and in this there was error.
A counter claim is a distinct and independent cause of action, and when properly stated as such with a prayer for relief, fhe defendant becomes in respect to the matters alleged by him an actor, and there are then really two simulta-\ neous actions pending between the same parties, wheréin \ each is at the same time both a plaintiff and a defendant. The defendant is not obliged to set up his counter-claim.' He may omit it and bring an'óther^action. He has his elec*276tion. But when he does set up his counter-claim, it becomes & cross action and both opposing claims must be adjudicated. The plaintiff then has the right to the determination ■of the Court of all matters thus brought in issue, and mutually the defendant has the same right, and neither has the ¡right to go out of Court before a complete determination of all the matters in controversy without or against the consent of the other.
This is the proper construction of the provisions of the Code in relation to counter-claim. C. C. P. § 100,104. Any other construction would defeat or impair these equitable .and economical provisions of it, by which all matters in controversy between the parties to a suit may be determined in the same action. Pomeroy on Remedies, § 734, 800 ; Holzbaur v. Heine, 37 Mo. 443; Woodruff v. Garner, 27 Ind. 4; Sloan v. McDowell, 71 N. C. 356; Harris v. Burwell, 65 N. C. 584; 72 N. C. 541; 66 N. C. 233.
There was,error in allowing the judgment of non-suit.
There were two appeals in this case, and but one record ■sent up. The plaintiffs appealed from the ruling of the ■Court excluding evidence of the check and its payment to J. M. Edwards. We affirm that judgment of the Court. ’The defendants appealed from the order of the Court allowing the non-suit. There was error in that, and for it the judgment must be reversed and a venire de novo awarded. This opinion applies to both appeals, and in each, judgment is given against the plaintiffs for costs.
As the case goes back for another trial, the plaintiffs should be allowed to reply to the plea of counter-claim in order that the question may be tried upon its merits. The omission to reply was perhaps inadvertent.
Per Curiam. Venire de novo.