The defendant was indicted for the crime of grand larceny in the second degree in having while acting as agent for the Spangenberg-McLean Company appropriated to his own use the proceeds of a check of fifty-six dollars and seventy-five cents belonging to such corporation.
Prior to the receipt of the check defendant had' entered into a written agreement with the complainant corporation that he would act as salesman for it for the period of six months for fifty per cent of the profits of goods sold by himself.
By the agreement it was provided that the corporation should advance to defendant thirty-five dollars per week, which advancement should be accounted for on the division of profits. It was also provided that any checks for merchandise sold by defendant might be made payable to him, but that he was to immediately indorse them over to the corporation.
The agreement continued in force for two months, when it is claimed it was terminated by mutual consent. After such ter*845ruination it was discovered that the defendant had indorsed and placed to his own account in hank a check of fifty-six dollars and seventy-five cents given to him in payment for goods sold belonging to the corporation, and it was for the appropriation to his own use of the proceeds of this check that the defendant was indicted and convicted.
On the trial the defendant introduced no evidence in his own behalf, and the only testimony on the part of the People was that of the president of the complainant corporation. The defendant rested his defense on >the proposition of law that he bore a partnership relation to the corporation in the sale of the goods and in the collection of the moneys from purchasers, and hence could not be guilty of larceny in retaining to his own use any of the money collected.
This position was wholly untenable, and the learned trial court was right in holding that no partnership relation existed. If any defense upon the merits existed it should have been developed instead 'of resting the defendant’s rights and liberty upon any such theory.
While it was proved that the defendant and the corporation mutually terminated their relations at the end of the second month of the defendant’s service, and while it was shown that the amount of sales which the defendant was able to make were small, and that fifty per cent of the profits upon them did not amount to thirty-five dollars per week, the evidence does not clearly establish that the corporation in fact advanced each week the thirty-five dollars which it obligated itself by its contract to do. If it had not made these advancements, and if the defendant openly ánd avowedly under claim of title to the money, preferred in good faith, retained the proceeds of the check as belonging to himself, he would not be guilty of larceny. So, too, if there was no termination of the contract or determination or settlement of the share of profits to which defendant was entitled, and lie being lawfully in possession openly and in good faith claimed the money as belonging to himself- as his share of the profits he would not be guilty of larceny.
It is true that no claim of title to the moneys was proven, and it is possible that none made openly and in good faith can be made, but in view of the lack of proof on the part of the People that full pay*846ment had been made according to the terms of the contract, and of the erroneous theory of defendant’s former counsel upon the trial, we are of the opinion that it is our duty in the interest of justice to exercise the right given us by section 527 of the Code of Criminal Procedure, and order a new trial where all the facts can be developed, and it can be determined upon the merits whether or not the defendant is guilty of the crime charged against him.
The judgment of conviction should be reversed and a new trial granted.
Ingraham and Mo.Laughlin, JJ., concurred; Clarke and Scott, JJ., dissented.