McCarthy

cited Foulke v. S. D. & G. S. P. R. R. Co. as construing Pixley v. W. P. R. R. Co. 33 Cal. 198 , to the effect that where the statute declares that a writing is necessary to bind a corporation, it only applies to executory contracts. (To the same effect Patten v. Hicks, 43 Cal. 509 ; Emery v. Smith, 46 N. H. 155; Jones v. Hay, 52 Barb. 507 .)

II. The defendant received value from the plaintiff.

The Court below held, as before stated, that because the plaintiff’s right to purchase was not in writing it was void; that being void there was nothing for the plaintiff to assign to defendant ; and that therefore there was no consideration for any promise, express or implied, from defendant to plaintiff, and the Court did so upon the authority of Mayer v. Child, 47 Cal. 142 . We do not question the correctness of that decision. But it is totally inapplicable to the case at bar. In Mayer v. Child, the contract assigned was wholly executory, and it never was executed. The contract assigned to Child was a parol one for the purchase of one hundred shares of Pioche mining stock. But this contract was never performed. The person who owned the stock refused to part with it in pursuance of his'…