Holmes v. Westvaco Corp. ( 1986 )

Goolsby, Judge:

This action at law involves the sale of timber rights by the respondent C. Dale Holmes to the appellant Westvaco Corporation. The trial court awarded Holmes a judgment against Westvaco in the amount of $4,000. We reverse.

On August 3, 1982, Holmes executed and delivered to Westvaco a written instrument entitled, “TIMBER DEED (Per Cord)” by which he sold to Westvaco “all marked trees” on a thirty-five acre tract of land that Holmes owned in Saluda County. The instrument gave Westvaco the right to enter Holmes’ property for a period of one year “for the purpose of cutting and removing the trees and timber, and to do all things necessary upon the lands in removing and cutting the timber.” The instrument recited that the consideration was one dollar and “additional consideration.” The additional consideration was to be a certain amount per cord for all pine pulpwood “obtained from the lands.”

Westvaco cut and removed some of the marked trees within the one-year period and paid Holmes for them. At the expiration of the cutting and removal period, however, Holmes refused to allow Westvaco to enter his property for the purpose of cutting and removing the remaining marked trees. The parties stipulated that the trees left standing upon expiration of the one-year period had a value of $4,000. This value is equal to or greater than the contract price of the remaining marked trees.

Westvaco contends the instrument in question is not a deed but is an executory contract and that title to the marked trees was to pass only upon the trees’ severance from the land. We need not determine, however, whether Westvaco’s contentions are correct because Holmes has suffered no damages irrespective of whether the instrument is a deed or an executory contract and irrespective of whether title to the marked trees passed to Westvaco only upon the trees’ severance from the land.

1, 2, The timber left standing on the land unquestionably belongs to Holmes. Rowland v. Harris, 218 S. C. 42, 61 S. E. (2d) 397 (1950). In an action for damages resulting from a failure to cut, remove, and pay for timber on certain property within a specified time, the measure of damages is the difference between the contract price and the market value of the timber left standing on the property at the end of the cutting and removal period. Stillwell v. Paepcke-Leicht Lumber Co., 73 Ark. 432, 84 S. W. 483 (1904); 52 Am. Jr. (2d) Logs and Timber § 125 at 94-95 (1970); 54 C. J. S. Logs and Logging § 33 at 735 (1948); see Weathersbee v. Green, 43 S.C.L. (9 Rich.) 492 (1856) (an action on a timber contract where court, in granting a new trial, implied that landowner could recover damages for trees left standing on the property after the expiration of the contract only if the trees had diminished in value from the date of the contract); cf. Code of Laws of South Carolina § 36-2-107(1) (1976) (a contract for the sale of timber is a contract for the sale of goods); Id. § 36-2-708(1) (measure of damages for repudiation by buyer is the difference between the market price and unpaid contract price together with any incidental damages).

In this case, the value of the timber left standing on the property is no less than the contract price. Thus, under the appropriate measure of damages, Holmes is not entitled to any general damages.

Holmes contends that, apart from any general damages owed to him, he is also entitled to special damages. Special damages, however, must be specifically alleged and proved. Sheek v. Lee, _ S. C. _, 345 S. E. (2d) 496 (1986); Kline Iron & Steel Co. v. Superior Trucking Co., Inc., 261 S. C. 542, 201 S. E. (2d) 388 (1973). Because Holmes did not request special damages in his complaint and offered no proof of such damages at trial, we decline to address this issue.

Reversed.

Cureton, J., concurs. Gardner, J., dissents.