It appears from the declaration that the defendant ■contracted with the plaintiff for the purchase of an interest in certain patent rights held by the plaintiff* under a license from the American Electric Light Company qf New York, agreeing to pay $500 therefor, but subsequently refused to accept or pay for the same; and the plaintiff* seeks to recover upon this contract. The case came to this court upon exceptions to the overruling of a demurrer to the declaration, and the judgment ■of the court below was affirmed. (89 Ga. 349.) A trial was then had before the judge without a jury; a motion to strike the defendant’s special pleas on the ground that they contained no defence to the action, was overruled; and the court, after hearing the evidence, Tendered judgment for the defendant. The plaintiff made a motion for a new trial, which was overruled, and to this ruling he excepted. He excepted also to the refusal of the court to strike the defendant’s special pleas.
We think the court erred in refusing to strike these pleas. The defences set up therein were based upon matters arising subsequently to the refusal of the defendant to comply with his contract. If the rights the qilaintiff had contracted to sell were forfeited, as averred in one of the pleas, by his failure to organize, within a year from the date of his license, a corporation which should succeed to his rights under the license, the forfeiture could not have occurred prior to the defendant’s *530refusal to take the interest contracted for, as the year had not then expired, the license being dated December 10th, 1881, and the refusal having taken place in the following February. A breach of contract cannot be justified by anything the other party to the contract may have done or omitted to do afterwards. If the defendant had no' legal ground for refusing to comply with his contract at the time of such refusal, the right of action which then accrued to the plaintiff would not be defeated by any subsequent forfeiture of the plaintiff’s rights under 'the license, nor by his subsequent dealings with the interest which the defendant had contracted to take.
That the contract declared upon was a valid contract, the breach of which would entitle the plaintiff to recover, was decided when the case was here before. (89 Ga., supra) The contract and the breach of it as alleged being fully established by the .proof, and the defendant having failed to establish a valid defence to the same, the plaintiff was entitled to a judgment for at least nominal damages and costs. £.£ In every case of breach of -contract, the other party has a right to damages,” and “ if there be no actual damages, the plaintiff can have nominal damages, which will carry the costs.” (Code, §2946; National Exchange Bank v. Sibley, 71 Ga. 727(4), 733; Kenny v. Collier, 79 Ga. 743, 745.)
. It follows from what has been said that a new trial should be awarded. Whether the plaintiff' would be entitled to actual damages or not, would depend upon whether at the time the breach of contract occurred the salable value of the interest .contracted for was less ■than the contract price. If it was, the plaintiff' would be entitled to recover the difference, this measure of damages being applicable where the vendor has retained as his own the property sold, upon the refusal of the vendee to take the same, as was done in this case. Tiedeman on Sales, §333. When the decision in this case *531was announced, we thought there was evidence tending to show that this difference amounted to as much as the sum stated in the head-note; b ut this was not absolutely-adjudicated, and the process by which the result was reached need not be examined.. Judgment reversed.