¶1All that is required by the common law to give validity to a sale of personal property is the mutual assent of the parties to the contract. If it is agreed that one party shall transfer to the other, for a valuable consideration, the absolute property in the thing sold, the contract is complete and binding on both parties. But if, by the terms of the agreement, some material act connected with the subject-matter of the contract remains to be done before delivery, the property sold does- not vest in the buyer until the performance of such *291act. Magee v. Billingsley, 3 Ala. 679; Benj. on Sales, 3. In such case the agreement is executory, and non-performance by either party may authorize an action for its breach.
¶2In the aspect of the present case we are relieved from all consideration of the question as to whether the evidence shows that any contract at all was made between the parties, and if it does, whether it was an executed contract or an executory agreement. These are always questions of fact to be determined by the jury, under instructions from the court, unless the contract be in writing. No action was had in the court below upon the evidence introduced; consequently there is nothing connected with it for our revision. The only question we are called upon to decide is, whether the court below erred in refusing to permit the plaintiff to introduce in evidence the certificate of stock in the Rock Mills Manufacturing Company; which refusal of the court caused him to take a nonsuit with a bill of exceptions.
¶3This certificate of stock was for eighty-six shares in said company, in favor of “ Caroline E. Darden and George W. Darden, the wife and son of W. C. Darden, and all the heirs of W. C. and Caroline E. Darden,” which shares were declared to be transferable only on the books of the company upon the surrender of the certificate.
¶4As we understand the bill of exceptions, the fifty-three shares of the stock alleged by the plaintiff to have been sold to the defendant are a part of the eighty-six shares named in the certificate. The plaintiff stated in his testimony that he had no authority to sell or dispose of the same, other than that of being “ the husband and father of the parties,” in whom the property in the stock was vested, as shown by the certificate.
¶5The court committed no error in excluding the certificate as evidence. It'showed upon its face that the plaintiff was not authorized to sell or dispose of any of the stock named therein, and it would have been irrelevant, and was consequently incompetent evidence under the issues joined.
¶6Let the judgment of the circuit court be affirmed.