Fawcett, Isham & Co., v. Osborn, Adams & Co. sonal is prima facie evidence of property, and consequently of the right to sell, yet that when property does not in fact exist, possession confers no right, either on the holder himself or on a vendee under him, who may have paid a valuable consideration on the faith of such possession." This whole subject, as to the power and right of one to sell personal property, when he has no title himself, is fully illustrated in the cases of McCombie v. Davis, 6 East, 538; 7 ib. 5; Pickering v. Busk, 15 East, 38; Barton v. Williams, 5 B. & Ald. 395; 3 Bing. 139; 2 B. & Ad. 484; 13 Pick. 294; 14 Wend. 31. It is only, therefore, where the real owner, with the possession of the property, gives also a proper documentary evidence of title, that he is estopped and barred by such sale; and where no such documentary evidence of title is given by the owner, no title passes on a sale by one who has no title himself. The rule in England, and in some States in this country, has been altered by statutes, which provide that bills of lading, dock warrants, warehouse certificates, and other documents used in the ordinary, course of business as proof of the right to sell or transfer the goods, shall be taken to be documents of title within the act. See Acts, 6 Geo. IV. & 5 & 6 Vict. It has uniformly been held that these instruments are made documentary evidences of title by statute, and as such were wholly unknown at common law. Evans v. Truman, 2 B. & A. 886; 3 Ibid. 320; 1 Smith's Lead. Cas. 895, and cases cited; 4 Man. & Gran. 295, 326'; 14 M. & W. 665. And nothing now is considered a document of title which will authorize a sale by one who has no real title, but an instrument under the hand of the party or owner himself, except such as are expressly mentioned in those statutes. Messrs. THOMAS HOYNE and C. A. GREGORY, for the defendants in error. For the defendants we may safely claim that their title rests upon the bona fides of their purchase, even without claiming Fawcett, Isham & Co., v. Osborn, Adams & Co. the protection of the copartnership which existed as to third. persons between the plaintiffs and the vendor of the property (Stevens), under this contract. Because the original owners placed their property in the hands of another person under such circumstances or in such a manner that the law implies a right and power on the part of that person to make a valid sale thereof (to a bona fide purchaser without notice), although between himself and the original owner no such right existed. Vide Story on Sales, § 202; Irving v. Motley, 7 Bing. 543; Barnes v. Bartlett, 15 Pick. 71. Again, defendants are entitled to hold the property as against the true, original owner in this case, because the case at bar falls within that large class of cases, where, though the title of the vendor may have been obtained by fraudulent means, yet "he can make a valid sale of the goods to a bona fide purchaser for a valuable consideration so as to deprive the original owner of his power to reclaim them." It is not like the case where the vendor has no title and has obtained possession of the goods by felony or chance. Vide Story on Sales, § 200; Hollingsworth v. Napier, 3 Caines Cases, 182; Mowrey v. Walsh, 8 Cow. 238; Toott v. Warren, 2 Fairf. 227; Wheelwright v. Depeyster, Johns. 471; Cross v. Peters, 1 Greenlf. 376; Conyers v. Ennis, 2 Mason, 236; Noble v. Adams, 7 Taunt. 59; Buffington v. Gerrish, 15 Mass. 156; Root v. French, 13 Wend. 570; Hill v. Perrot, 3 Taunt. 274; Smedley v. Goodery, 3 M. & Sel. 191; Bradley v. Anderson, 1 Cromp., Mees. & Rosc. 490; Parker v. Patrick, 5 Term, 175, cited in 7 Bing., ante, 542. This case stands upon the principle enunciated in 13 Wend. 572 (Root v. French), and followed by the Supreme Court of this State; it is, that an innocent third person finding a vendor who sells to him, in possession of the property sold, without notice of any fraud affecting such possession, showing that it is otherwise than a rightful and lawful possession, may obtain a superior title to that of the lawful owner who enabled the person in possession to deal with it as his own, by clothing him Fawcett, Isham & Co., v. Osborn, Adams & Co. with the evidence of that ownership, without which the innocent purchaser would not have become a purchaser. See also, Jennings v. Gage, 13 Ill. 614; Ketchum v. Watson, 24 Ill. 591; Roberts v. Haskell, 20 Ill. 65. But in relation to the copartnership, in view of its effect upon the rights of the defendants: The court in 24 Ill. decided that the contract between the parties for the manufacture of the leather, did constitute a copartnership (page 480); but also held that as between the parties themselves the right of property in the leather after it was manufactured was in Fawcett, Isham & Co.; but they expressly desire it to be remembered (page 485), that "in that case it is not a question between third persons and the parties to the agreement growing out of the subject matter of the agreement, but it arises between and only affects parties to the agreement." Here was a joint enterprise engaged in by Fawcett, Isham & Co., and the Stevens' in which both parties embarked money, stock, labor, and expressly agreed to share “in losses as well as profits." There was such a partnership between them as would protect a purchaser from Stevens. Story on Part., sec. 36, 27; ex parte Hamper, 17 Vesey, 404; ex parte Watson, 19 ib. 459; Dey v. Boswell, 1 Campb. 320; Selby v. Hutchinson, 4 Gilm. 329. Messrs. MCALLISTER, JEWETT & JACKSON, for the plaintiffs, in reply. The defendants, in alleging a partnership between Fawcett, Isham & Co., and the Stevens' for the purpose of making good the sale to them, is bound to show either a partnership in fact, which is always sufficient, or that they acted upon such representations, statements or facts as estop the plaintiffs from showing that no partnership did exist. See 1 Smith's Lead. Cas. 729, and cases cited. That the defendants purchased in view of any such understanding is contradicted by the fact that they had no knowledge of the plaintiffs, and dealt with perfect strangers. Fawcett, Isham & Co., v. Osborn, Adams & Co. But the contract in question, between Fawcett, Isham & Co., and the Stevens', does not create a copartnership in any sense; it does not provide for a sharing of profit and loss, in any proper sense of that phrase, when used as a test or criterion of a copartnership. The case of Bowman et al. v. Bailey, 10 Vermont, 170, fully illustrates our views on this point. See also, Dwinel v. Stone, 30 Maine, 384; Smith v. Wright et al., 5 Sandf. 113; Loomis v. Marshall et al., 12 Conn. 60; Denny et al. v. Cabot et al., 6 Pick. 335; Dunham v. Rogers, 1 Barr. 255; Buckle v. Eckhart, 1 Denio, 337. Mr. JUSTICE BREESE delivered the opinion of the Court: This is an action of trover and conversion to recover the value of two thousand sides of hemlock-tanned soleleather. There was a trial in the Superior Court of Chicago, and a verdict and judgment for the defendants. The case is brought here by the plaintiffs by writ of error, and on bill of excep tions. The title to this leather, as between the plaintiffs and the Stevens, was settled by this court in an action of trover brought for the conversion by the Stevens' of nine thousand sides of hemlock-tanned soleleather, and established in the plaintiffs. Stevens v. Fawcett et al., 24 Ill. 483. The leather is identified as the leather tanned for the plaintiffs by the firm of W. H. & F. Stevens, and a demand of it was made by the agent of the plaintiffs, of the defendants in whose possession it was found. How did the defendants acquire a title to this leather? It seems, from the proof, that a large quantity of hides had been intrusted to W. H. & F. Stevens, the owners of a tannery, by the plaintiffs, to be tanned at a certain price per pound, and on a sale of the leather by the plaintiffs after deducting all charges against it, the net profits were to be divided between the parties. The contract was made in August, 1855, and was to continue three years, Stevens agreeing not to tan hides for others, except for a few customers in the neighborhood during that time. The hides, when tanned, were to be delivered to Fawcett, Isham & Co., v. Osborn, Adams & Co. the plaintiffs at a dock in New York city. In the month of September, 1856, Fletcher Stevens, one of the firm, shipped, in a clandestine manner, a large quantity of the leather manufactured from the plaintiffs' hides, to places other than the city of New York. During this movement of the leather, Stevens assumed the name of F. Stafford, and had in his employment, a man by the name of William H. Stanton, who, at the suggestion of Stevens, assumed the name of L. L. Stratton. Two thousand sides of this leather were shipped in 1857, by Stevens to Chicago, consigned to "F. Stafford," and on their arrival, were taken possession of by Stanton, under the assumed name of Stratton, who had been sent there by Stevens for that purpose and to dispose of the leather. Stanton Stratton, soon made the acquaintance, at Chicago, of one Rose, before then an entire stranger, who introduced Stanton, by his assumed name, to the defendants, who, thereupon, purchased of him two thousand sides of the leather, and made payment therefor. The plaintiff's having traced their leather into the hands of the defendants, demanded a return of it, and on refusal to surrender it, they brought this suit. The defendants set up no other title to the leather, than this purchase, under the circumstances, thus briefly detailed, and the question arises whether such a purchase divests the true owners of their title to the property. The defendants contend that they bought the property in good faith, in the regular course of business, paying a full price in open market, and with no knowledge of a want of title in their vendor, in whose possession the property was, when purchased by them. They insist that this is one of a large class of cases, where, though the title of the vendors may have been obtained by fraudulent means, yet he can make a valid sale of the goods to a bona fide purchaser for a valuable consideration, so as to deprive the original owner of his power to reclaim them. Numerous cases are referred to in support of this view, into which we have looked, and find, for the most part, they are |