delivered tbe opinion of tbe court.
Tbe appellee here, who was plaintiff below, was engaged during tbe fall of 1903 in operating a cotton gin in tbe town of Scobey. Some time near tbe middle of December be broke a piston rod — the same being necessary to the ojjeration of *336bis gin machinery — and sent the same, under a hurry order, to the Adams Machine Company, at Corinth, for immediate repair and return. The rod was repaired and certain other necessary parts added by the Adams Machine Company, and all were delivered to the Southern Express Company, consigned to appellee at Scobey, Miss., marked “O. O. D. $16.00,” on the 15th day of December. The articles so consigned were received by the American Express Company, a connecting line (appellant here and defendant below), at Memphis on December 15th, and on the same day were forwarded to appellee at Scobey, Miss. They were in some unaccountable way lost in transit, were never found, and consequently never delivered. On January 1st appellee, having been definitely informed that the missing pieces were lost and could not be found, ordered duplicates, which were forwarded to him, and received at Scobey on January 7th. In the meantime appellee’s gin had been standing idle because the machinery could not be run without the piston rod and other repairs which had been lost as above set out. The Adams Machine Company filed a claim against appellant for the lost shipment when /they received the second order from- appellee, and later received from appellant $20.50 in full of all damages. Of this they sent appellee $4.50, the value of the piston rod, which sum, on the advice of his attorney, who had made demand of appellant for the damages suffered by appellee, he returned. Appellee then sued appellant for damages suffered in consequence of appellant’s failure to promptly transport and deliver the piston rod and attachments, and received a verdict and judgment for $419.
The judgment must be reversed. Instruction No. 1 for plaintiff is erroneous, in that it assumes that the property consigned to him belonged to him, when the evidence, as to the greater part of it, shows the contrary.'
Instruction No. 3 for plaintiff is erroneous, in that it authorizes the jury, in determining the rental value of his machinery, *337to take into consideration any time lost by plaintiff in going to the depot or office of the defendant and making inquiry about the machinery lost. The time so lost could have no relation whatever to the rental value of the machinery, and is not properly an element of damage in this case.
Instruction No. 4 asked for defendant should have been given. ' Defendant was entitled to even a more favoraDle statement of the law than was contained in this refused instruction. Certainly it could not he made liable for special or extraordinary damages unless notice of the importance of the shipment and prompt delivery had been made at some time before the shipment had been lost or had been misplaced or miscarried.
Instruction No. 5 for defendant, as modified by the court, is clearly erroneous; but, as the original instruction is not itself correct, in the absence of any proof in' the record that the contract of affreightment with the Southern Express Company was a through contract, of whose terms the connecting carrier, the American Express Company, had the right to avail itself, defendant could not complain of the modification.
Inasmuch as the case must be tried anew, it is proper that we state the law with regard to the measure of damages applicable to this case and others of like character. In the leading case of Hadley v. Baxendale, 9 Excheq., 341—a case in its facts very much like the case at bar — the court said: “Now, we think the proper rule in such a case as the present is this: 'Where two parties have made a contract, which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally (i. e., according to the usual course of things) from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach of it.
*338Now, if tbe special circumstances under wbicb tbe contract was actually made were communicated by tbe plaintiff to tbe defendant, and thus known to both parties, tbe damages resulting from tbe breach of such contract, wbicb they would reasonably contemplate, would be tbe amount of injury wbicb would ordinarily follow from a breach of contract under these special circumstances so known, and communicated. But, on tbe other band, if these special circumstances were wholly unknown to tbe party breaking tbe contract, be, at tbe most, could only be supposed to have bad in contemplation tbe amount of injury wbicb would arise generally, and in tbe great multitude of cases not affected by any special circumstances, from such a breach of contract. For, bad tbe special circumstances been known, tbe parties might have specially provided for tbe breach of tbe contract by special terms as to tbe damages in that case, and of this advantage it would be very unjust to deprive them.” This luminous statement of tbe law as to ¡special or extraordinary damages has been very' generally adopted in tbe jurisdictions administering tbe common law. 8 Am. & Eng. Ency. Law, 584, 585, notes; 1 Sutherland on Damages (3d ed.), sec. 45; 14 Cyc., 34; 3 Wood on R. R., 454; 2 Beach on Railways, sec. 948. It was adopted by this court in tbe leading case of V. & M. R. R. v. Ragsdale 46 Miss., 458, and has been uniformly adhered to since. Tbe rule, as above stated, is established not only in authority, but also in reason. If one of tbe parties to a contract is to be made liable for extraordinary damages, it is right that before tbe contract is made be should have notice of tbe exceptional circumstances that may warrant them, in order that be may decline, if be wish, to make a contract to wbicb such enhanced liability may attach or may make special stipulations for increased compensation, He has tbe right to do either, and is entitled to notice to that end. If be, however, enter into tbe contract, or if, being a common carrier, be receive an article for transportation, after having received from tbe other party notice of *339tbe special circumstances, be is conclusively presumed to bave contracted witb reference to tbe enlarged liability. It is also to be remarked tbat be is entitled to notice of tbe special circumstances, in order tbat be may nse special diligence and employ extra precautions to guard against tbe increased risk.
Counsel for appellee, while conceding tbe correctness of tbe rule as a general proposition, contends tbat “it makes no difference whether tbe carrier bad notice of tbe special purpose to which the consignee intends to put tbe machinery at tbe time of tbe contract of affreightment, provided such notice is given it during tbe period of transportation, and in such event tbe carrier will be liable for special damage accruing for unreasonable delay after such notice is given.” Tbe only one of tbe five cases cited in support of this proposition which seems clearly to support it is tbe case of Gulf, C. & S. F. Ry. v. Gilbert (Tex. Civ. App.), 22 S. W., 760.; but tbe supreme court of Texas, on a rehearing of this case’ admitted error in tbe former decision, and delivered a strong opinion repudiating tbe modification of tbe rule contended for by counsel, and declaring tbat “it is not enough to give notice to tbe carrier after tbe contract is made, and tbe shipment has started in its transportation, because tbe liability of tbe carrier cannot be increased by tbe subsequent knowledge of facts that did not exist in tbe contemplation of tbe parties at tbe time tbe engagement was entered into. It then became an effort upon tbe part of one of tbe contracting parties to inject a stipulation into tbe contract after it was entered into tbat increases tbe liability of tbe other, tbat was not mutually considered when the engagement was made.” Gulf, C. & S. F. Ry. Co. v. Gilbert (Tex. Civ. App.), 23 S. W., 320. Tbe modification contended for it is not supported by authority, is not founded in reason, and will not receive tbe sanction of this court.
It is contended, again, by counsel for appellee, tbat tbe rule requiring notice of special circumstances in order to tbe reeov-*340ery of extraordinary damages does not apply in this case, because the gravamen of tbe declaration is that of neglect or breach of duty in the course of the general employment of appellant, the action being of tort, and not for a breach of contract. We cannot concur in this. Damages arising from merely negligent delay in transportation of freight by a common carrier are generally and correctly treated as arising ■ex contractu. The rule for their admeasurement is well established in our jurisprudence, and cannot be modified, and the damage recoverable largely increased, by the simple expedient of changing the form of the action. Especially must this be true in a jurisdiction that pays hut little attention to the forms of pleadings, but looks to the substance of the cause. This court, in an action ex delicto, has held that the rule announced in Hadley v. Baxendale would he applicable in case of failure to carry and deliver freight in reasonable time, where such failure arose from the mere negligence of the carrier, hut that wanton and gross neglect of their duties by common carriers, and reckless disregard of the rights of shippers, and willful refusal to deliver, if alleged in the declaration and sustained by the proof, would authorize a verdict not only for compensatory, but also for exemplary, damages. Silver v. Kent, 60 Miss., 124. This limitation of the general rule is eminently correct, but neither the averments of plaintiff’s declaration nor the facts in evidence bring his case within it.
If upon another trial of this case it shall be developed that the Southern Express Company made a contract for through shipment, contracting for both itself and its connecting line, the American Express Company, special damages will not be allowed unless it shall appear that, before the articles were received by the Southern Express Company for shipment, it had notice of the special circumstances of plaintiff’s situation and of the great importance to him of prompt carriage and delivery. If it shall appear that the Southern Express Company *341contracted only for itself, and not for itself and connecting line, then special damages will not be allowed unless it shall appear that before the articles were received by defendant, the American Express Company, it had notice, at the place where it received the shipment, of the special circumstances of plaintiff’s situation and of the great importance to him of prompt carriage and delivery. Notice to defendant’s agent at Scobey at the time of the shipment of the piston to the Adams Machine Company for repairs will not suffice.
Reversed and remanded.