
    W. S. WILSON v. S. H. SCARBORO and Wife.
    (Filed 10 May, 1916.)
    1. Deeds and Conveyances — Timber—Vested Interests — Divested Interests.
    A conveyance o£ timber growing upon lands, to be cut and removed within a stated period, vests the title to the timber, subject to be divested if not so cut and removed by the grantee.
    2. Deeds and Conveyances — Timber—Breach—Conversion — Damages — Evidence — Diminution.
    Where the grantor breaches a provision of his deed, conveying timber standing upon his lands, by entering thereupon and preventing the grantee from removing, etc., the timber within the stated period, the defendant’s act is, in effect, a reconversion of the timber to his use, and he is liable for the damages caused thereby; and evidence introduced solely for the purpose of showing that the grantor could have purchased other timber in the same locality from other parties in lieu of the timber the defendant had sold him, and thus have minimized his damages, is incompetent, though admissible in rebuttal of the plaintiff’s testimony upon a different phase of the case, had it been offered for that purpose.
    3. Contracts — Breach—Damages—Diminution—Evidence—Knowledge—Deeds and Conveyances.
    Where it is permitted a party, who has breached his contract, to prove that the other party thereto could have minimized the damages by acquiring like property similarly situated, it is necessary for suck party to show that the other had knowledge of the conditions relied upon at the date of his breach.
    4. Deeds and Conveyances — Timber—Contracts—Breach—Measure of Damages.
    Where the grantor has breached the terms of his deed to standing timber by entering upon the lands and preventing the grantee from cutting and removing the timber within the stated period, the rule of damages is the difference between the actual value of the timber and the contract price, and, if the price had been paid, the value of the timber.
    Allen, J., dissenting.
    RpoN rebearing.
    
      Douglass & Douglass, B. N. Simms for plaintiff.
    
    
      Jones & Bailey for defendants.
    
   Beown, J.

Tbis case comes up upon a petition to rebear and reverse our former decision, reported in 169 N. C., 654. Tbe action is brought to recover damages for trespass upon plaintiff's property, to wit, certain standing timber wbicb plaintiff alleges tbe defendant wrongfully and unlawfully prevented plaintiff from cutting and removing, in violation of tbe terms of a conveyance of said timber, executed by defendants to plaintiff. Tbe issues are set out in tbe report of tbe case in 169 N. C.

Tbe case was before us at Fall Term, 1913, and is reported in 163 N. C., 387. We then construed tbe deed executed for tbe timber by defendants to plaintiff and beld it to be an executed and not an execu-tory contract, and that it passed a x>resent estate in tbe timber, defeasible as to all timber not cut by tbe grantee within tbe time limit fixed by tbe parties in tbe instrument. At tbe last trial only issues of damages were submitted and passed on, and tbe judgment of tbe Superior Court was affirmed.

On tbe trial defendants’ counsel asked these questions, wbicb were excluded, and defendants excepted, viz.:

“Will you state wbat tbe price of stumpage was of tbe character of tbe Scarboro timber in that neighborhood in tbe years 1909, 1910, and 1911?
“Do you know whether there was any stumpage in tbe neighborhood of tbe Scarboro timber in those years?
“Do you know bow much there was to be bad in that neighborhood ?”

The counsel for defendants stated in open court that tbe purpose of these questions was to show that at tbe time of tbe alleged breach of contract by tbe defendants there was available in that community, in substantially tbe same situation and substantially of tbe same character, very much more timber for sale at a price not exceeding the price tbe plaintiff was to give tbis defendant.

In announcing bis ruling tbe judge said that tbe evidence was offered on tbe theory that plaintiff could have bought more timber and used it in place’ of that on tbe Scarboro land, and stated that be excluded tbe evidence for that purpose.

Tbe court was asked to instruct tbe jury: “Tbe measure of damages in this case is tbe difference between tbe contract price of tbe timber and its market value in tbe vicinity where it is located; and if tbe plaintiff could have obtained all tbe timber be wanted, in that vicinity or elsewhere, as good as tbe Scarboro timber and as easily accessible to Wyatt, tbe place of shipment, and at tbe same or less price, then be should have done so.”

Tbe court instructed tbe jury that tbe measure of damages for tbe conversion of tbe timber was tbe difference between tbe contract price and its market value in tbe vicinity where it is located, and refused tbe remainder of tbe prayer. Tbe defendants excepted.

In tbe petition to rehear we are asked to reverse obr opinion upon this assignment of error. After a further consideration, we are confirmed in tbe opinion that tbe ruling of tbe court below was correct in rejecting tbe evidence for tbe purpose for which it was offered.

1. Assuming that such evidence in mitigation of damage is competent in a case like this, tbe offer to prove as well as tbe prayer for instruction is fatally deficient in one material particular. It is essential that tbe plaintiff should have bad knowledge at tbe date of tbe breach of tbe contract that be could have obtained tbe same timber at tbe same or less price in substantially the .same situation in that community. Tbe defendants’ offer to prove fails in this essential averment.

Evidence offered to establish a defense, operating to mitigate damages, must tend to prove all essential facts, or it is properly excluded. Knowledge by tbe party complaining of a breach of a contract that be could by reasonable diligence have prevented or lessened the. damage caused by another’s wrongful act is essential. Huntington Co. v. Parsons, 62 W. Va., 26.

2. We do not think, however, that tbe rule of law invoked by defendant applies to this case. Tbe gravamen 'of plaintiff’s complaint is that be purchased from defendants tbe timber standing and growing upon certain lands at a certain contract price, which plaintiff agreed to pay and defendants agreed to receive; that tbe defendants conveyed the timber to him by deed and that be bad five years within which to cut and remove it; that defendants wrongfully prevented plaintiff from cutting, and removing tbe timber under tbe terms of tbe deed and converted same to their own use. Tbe cause of action being established, tbe quantum of damage is alone to be adjusted.

We have long since held that standing timber, growing upon land, is a part of tbe realty and is governed by tbe laws applicable to that kind of property. Hawkins v. Lumber Co., 139 N. C., 160. In consequence, this deed of defendants to plaintiff bas been construed to vest in plaintiff an absolute estate in tbe timber, defeasible at tbe end of tbe term as to uncut timber. It follows, therefore, tbat when defendants entered during tbe term and deprived plaintiff of bis property in tbe timber, it was practically a conversion to defendants’ use. Tbe rule of damáge was, therefore, correctly stated by the court. It is tbe difference between tbe actual value of tbe timber and tbe contract price. Of course, if tbe price bas been paid, it would be tbe value of the timber. There may be eases in which other incidental damages may be allowed.

There are many cases of breach of contract and of tort in which tbe rule contended for by tbe defendant applies. Illustrations are given in tbe opinion of Mr. Justice Walker in this case, 169 N. C., 657. But neither tbe diligence of tbe learned counsel for defendants nor our own researches have been able to produce a case where such rule bas ever been applied to actions like this.

Tbe plaintiff owned tbe timber growing on tbe land. He bad a property right in it, which be bad tbe right to use and enjoy to tbe fullest extent, and defendants bad no right to deprive him of it. And as is held by tbe Supreme Court of Georgia in Mfg. Co. v. Rucker, 80 Ga., 291: “"Whenever tbe right to enjoy one’s property to its fullest extent is invaded, and injury arises therefrom, be may recover any damages sustained by reason of such invasion; nor is be bound to do anything to avoid tbe consequences thereof.” See, also, Price v. Shoals, 132 Ga., 250; Satterfield v. Rowan, 83 Ga., 187.

In Reynolds v. Chandler Co., 43 Me., 513, it is held tbat when damage is caused by tbe flow of water from a dam, tbe owners are liable to tbe full amount of tbe injury, notwithstanding tbe injury might have been prevented by an expenditure less than tbe amount of damage.

Tbe Court of Appeals of Texas, in Ry. Co. v. Borsky, 21 S. W. Rep., 1012, held tbat “though it is tbe duty of a party to protect himself from tbe injurious consequences of tbe wrongful act of another, if be can do so by ordinary effort and care, or at moderate expense, such rule bas no application in a case for damages against a railroad for tbe destruction of plaintiff’s crops by overflow from tbe defective construction of defendant’s roadbed, where injury could only have been prevented by the digging of a ditch at a cost of $300.”

When tbe defendants wrongfully deprived plaintiff of tbe right to cut and remove tbe timber they bad conveyed to him, we do not think be was required to go around tbe community and inquire if there was other timber for sale, in an effort to replace tbat which bad been wrongfully taken from him.

Plaintiff bad a right to purchase other timber and to cut and sell it and make all possible profit on it; but bad be done so it would not have relieved, defendants from tbe consequences of tbeir wrongful act in respect to tbe timber be bad purchased from them. Suppose plaintiff bad bought A.’s timber and tbe timber of a dozen others in that community, and bad cut and sold it, making a profit on it, that is no reason why tbe defendants should be permitted to take tbe timber plaintiff bad purchased from them and wrongfully convert it to tbeir own use and not pay for it. Plaintiff bad tbe right to cut and sell that timber and make what profit on it be could, regardless of bow many other tracts be could buy and sell at a profit.

If the rule of damages insisted upon by the defendant could apply to this ease, a multiplicity of collateral issues would be raised which would completely obscure tbe original cause of action. Tbe plaintiff would be required to prove:

1. Whether or not there was any stumpage for sale in tbe neighborhood of tbe timber in question at the time of the breach of tbe contract.

2. Tbe quality and location of timber that might have been for sale in said neighborhood in comparison with tbe Scarboro timber.

3. That Wilson could have purchased tbe stumpage in question.

4. That Wilson could have purchased stumpage for sale, with tbe privilege of cutting it at any time within five (5) years, and on terms as set forth in tbe Scarboro deed.

5. That tbe parties, who were willing to sell, each bad a good and indefeasible title to tbe land upon which tbe timber grew.

Upon each of these issues it would be competent for both parties to offer evidence pro and con.

The statement of tbe proposition and tbe issues that would be raised by its adoption conclusively demonstrates that it would be a dangerous innovation to bold that tbe vendor of timber can disregard tbe terms of bis solemn deed, reap the pro'jvts himself, and then bold tbe vendee to strict accountability for not buying more-timber. But even in respect to common carriers in dealing with goods which have been lost by tbeir negligence, tbe courts will not apply this rule to tbe owner when be sues to recover tbe value of bis property.

It is held in R. R. Co. v. Cobb, 64 Ill., 128, that “Where a person has bought and paid for an article, and suffers loss by reason of a default on tbe part of a carrier by whom it is shipped to get it to tbe point to which it is consigned, tbe carrier cannot claim that the injured party could have bought similar goods on tbe market at tbe point of consignment, in order to reduce tbe loss.”

It is contended that tbe evidence rejected should have been admitted on another ground. Tbe plaintiff was permitted to prove the value of standing timber similar to this in that community and tbe price at which lumber was selling in that market. This evidence was declared .competent in tbe previous opinion of this Court. It was perfectly competent for tbe defendant to rebut this evidence by showing that the value of the timber in'the neighborhood and the price of lumber on the market was less than the testimony offered by the plaintiff tended to prove, and if the evidence had been offered for this purpose, we have no doubt it would have been admitted. But according to the statement of his Honor, the evidence was offered for the purpose of showing that the plaintiff could have bought more timber and used it in lieu of the Searboro timber and made equally as much thereon, thereby lessening or entirely obviating any damage. His Honor states that the evidence was offered for that purpose and excluded, and we think properly so.

The petition to rehear is

Dismissed.

AlleN, J.,

dissenting: This is an action to recover damages for breach of contract, the plaintiff alleging that the defendant sold him the timber growing upon lands belonging to defendant at $2.25 per thousand feet, and that he refused to permit the plaintiff to cut the timber.

The plaintiff was permitted, over the objection of the defendant, to prove that he was under contract to deliver 800,000 feet of lumber, and that in order to perform his contract he was compelled to buy timber at $4 per thousand feet.

If this evidence was accepted by the jury — and we have no means of knowing that it was not — it shows that the plaintiff had lost on this contract the difference between $2.25 and $4 per thousand feet, or $1,400.

The defendant then offered to prove, in reply to this evidence and for the purpose of showing that it was not necessary for the plaintiff to pay $4 per thousand feet in order that he might perform his contract, that there was available in that community in substantially the same situation and substantially of the same character very much more timber for sale at a price not exceeding $2.25 per thousand feet.

I think this evidence was clearly competent and that its exclusion entitles the defendant to a new trial.  