Cooper v Ungar

For the reasons I have given we think that the vendor's action was bound to succeed and that the vendor was entitled to recover the amount of £6,125.

The action was of course tried with a jury. Unfortunately there has been some confusion as to what the jury meant by their findings when they first brought in their verdict.

I have not traversed the pleadings but it is a fact that there were two counts in the declaration, the first of which was based upon the assumption that there had been a breach of contract enabling the vendor as plaintiff to recover unliquidated damages calculated on loss of his bargain, and the second of which dealt with the cause of action under the last part of cl. 14 which I have discussed. The measures of relief under the respective counts, that is to say the amounts recoverable under each, are by no means necessarily the same. The learned judge had left to the jury a cross-action based upon the view that there was an implication exposing the plaintiff to a liability for damages for failing to sell within a reasonable time. All this led to the jury returning into court with findings which appear to exhibit a considerable amount of confusion. In the end, however, the jury did find a verdict on both counts for the same amount and that is the amount which I have mentioned. We need not inquire whether it could be supported as representing a proper measure of damages under the first count if the cause of action under that count and not under the second had been made out. The judgment should, in our view, have been on the second count and it is that on which the verdict for the sum claimed should have been found.