The thing attempted to be conveyed was not in existence, therefore could not be transferred. (Sec. 1722, Civil Code; *515Lunar 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 presently existing corporation.” ( Chater v. S. F. Sugar Refining Co. 19 Cal. 246.) And the reasoning of that case will apply to agreements, sales, and transfers alike.

The facts, as testified to by the plaintiff himself, did not make a case in his favor, and the defendant’s motion for a nonsuit should have been sustained. The certificate of Hio-mns to the Oo effect that the plaintiff is “ entitled to one thousand shares in the Mansfield Mine, to be issued as soon as practicable after the same is incorporated,” was not the act of the corporation, nor binding upon it; for at that time ‘the corporation was not in existence, and the subsequent refusal of the Secretary to issue stock thereon was not an act of conversion by the corporation.

The case is not distinguishable from that of Morrison v. Gold Mountain Gold Mining Company, ante, p. 306.

Judgment and order reversed, and cause remanded.