Hawkins

The thing attempted to be conveyed was not in existence, therefore could not be transferred. (Sec. 1722, Civil Code; *515 Lunar v. Thornton, cited in Benjamin on Sales, 227—9; 2 Kent’s Com. p. 469; 2 Esp. 639.) The Code as it stood January 11th, 1873, provided a way for dealing with non-existent property. (Sec. 1730, Civil Code.) The contract between Higgins and respondent must be construed under said section. It was a mere executory agreement, the remedy for a breach of which was an action for damages. (Benjamin on Sales, p. 727; Hale v. Rawson, 4 Com. B. Note 5, p. 85.)

J. G. Severance, for the Respondent.

Although, when Higgins transferred to respondent his interest in fifteen hundred shares of the stock, the incorporation may have been a mere possibility, yet was that possibility coupled with a then existing interest; and if we apply to sec. 1045 of the Civil Code the rule, “ exceptio firmat regulam in casibus non exceptis,” it was a valid transfer under Arts. I and H of chap. 1 of Title IY relating to transfers, of the same Code. “A man may as well make an agreement with another for certain stock in a corporation to be organized hereafter as an agreement for stock in a…