I concur with Mr. J us tice Laughlin. I do not think the former judgment was a bar, as it was not determined that the plaintiff was' .not entitled to recover the damages sustained by reason of the (defendant’s breach of its contract, nor did the plaintiff recover any dam*357ages on account of such breach. The court dismissed the complaint and determined that upon the evidence then before the court the plaintiff was not entitled to have the question as to the damages for a breach of the contract submitted to. the jury.. The exception to this dismissal of the complaint was overruled by this court, and judgment was thereupon entered dismissing the complaint, which judgment was affirmed by the Court of Appeals. If upon that trial there had been a verdict for nominal damages of six cents upon which the judgment had been entered and the plaintiff had received that amount as the damages which it had sustained in consequence of the breach of the contract, a different question would have been presented; but there .never having been a determination that the plaintiff was not entitled to recover for the breach of the contract by the defendant, and no award of such damages having been made, it seems to follow that the dismissal of the complaint did not stand in the way óf a new action to recover real damage and, therefore, the court below correctly held that the former judgment was not a bar to this action.
Upon the measure of damages, I also think the court properly submitted the question to the jury and that their verdict is controlling. By the contract between the parties, the defendant purchased from the plaintiff certain patents and personal property and agreed to pay therefor. One hundred and fifty thousand dollars was to be paid upon the execution of the assignment and transfer of the patents and property, and an additional sum of money was to be paid by the defendant, dependent upon a test which the defendant agreed to make. The patents and property were actually transferred to the defendant, and $150,000 was paid to the plaintiff. Up to this point the contract had been complied with by both parties. The property had been transferred to defendant. A portion of the consideration had been paid. The question as to what, if anything, further should be paid was to depend upon a test which the defendant obligated itself to make. The defendant, by refusing to make such test, was guilty of a breach of this obligation which it had undertaken to perform; and it is that breach by the defendant that is the basis of the plaintiff’s cause of action, and plaintiff is entitled to recover the damages sustained by that breach. The agreement to sell and transfer the property was not broken, but *358was complied with. It was the agreement as to the payment of the purchase price for the property as to which there was a breach. The main contract itself is still in force, and the plaintiff was entitled to enforce it. The amount that the defendant had agreed to pay for the property is what had to be determined in this action. If the defendant had complied with its contract, that amount would have been determined by the test which it had obligated itself to make. It broke its contract to make the test; and. the damage sustained by the plaintiff in consequence of that breach of the contract was, it seems to me, the amount that the defendant would have been required to pay under the contract, had the test been made. The defendant having refused to make the test, there was substituted for it the determination by the jury as to what would have appeared had the test been made ; and this is in effect the decision of the Supreme Court of the United States in Humaston v. Telegraph Co. (20 Wall. 20). In that case the property was sold to the defendant in consideration of the issue of 100 shares of the stock of the defendant corporation and a further consideration of not exceeding 400 shares of capital stock to be paid or issued to the plaintiff upon condition that three referees or arbitrators were to decide how much more should be issued after such arbitrators should be satisfied as to the capability and value of the patented inventions. There, the arbitrators were to determine the question as to how much more of the stock the plaintiff should receive, and the defendant having refused to enter into the arbitration,, it was held that the jury were tó determine that matter, and as it was to be based upon the value of the property sold, the question as to how much more the plaintiff was entitled to was to be determined by the value of such property. Here, under the contract, the additional amount that the defendant was to pay had no relation to the value of the property, but was to be determined upon a comparison between the system transferred by the plaintiff to the defendant and the system then controlled and operated, or to be operated, by the defendant. Substituting the jury to make the test that- the defendant agreed to make-, what it had to determine was just what the test would have determined ■—■ whether or not the plaintiff’s system was equal to or superior to the defendant’s system, and when that question was determined, the contract itself *359provided for what, if any, additional payment should be made. In this case the jury had determined that the plaintiff’s system waé equal in value to the defendant’s system, and it must be presumed that the test made by the defendant would have disclosed such equality.
That fact being determined, the damage sustained by the plaintiff in consequence of the breach of the defendant’s obligation to make the test was clearly the amount which, under the contract, the defendant would have been obligated to pay if the systems were equal; and it was for such damages that the jury rendered a verdict which, I think, was sustained by the evidence.
Patterson, P. J., concurred.
Judgment and order affirmed, with costs.