in the warehouse of said carrier at the point of origin, was notified that this was a special shipment of goods and would be valueless unless delivered within thirty days. The agreed statement of facts, however, shows that at the time the contract of affreightment was made the agent of the carrier was not informed by the shipper of these facts. The question thus sharply presented to the court is this: Whether or not the carrier, not being informed of the special damages likely to flow from a breach of the contract of affreightment at the time the contract was made, can be made liable for these special damages by being informed at a subsequent date of them, while the goods are still in the possession of the carrier at the point of origin. This court has held, in a number of cases, that special damages are only recoverable when the carrier is informed at the time the contract is made of the special circumstances. from which damages will flow. The court, in the case of Railroad Company v. Lyon, 107 Miss. 777, 66 So. 209, Ann. Cas. 1917D, 171, used the following language:

"Special damages can be recovered from the carrier for delayed transportation only where it is shown that the shipper informed the carrier, at the time the contract was made, of the special circumstances requiring prompt transportation and delivery. This is the rule in this state, and seems to be universal."

To the same effect are the cases of Railroad Company v. Jacobson, 112 Miss. 158, 72 So. 889; Railroad Company v. McKenna, 104 Miss. 843, 61 So. 823; Railroad Company v. Allen, 106 Miss. 275, 63 So. 572. Practically the same contention made by the appellee in this case was made in the case of the American Express Company v. Jennings, 86 Miss. 329, 38 So. 374, 109 Am. St. Rep. 708. In responding to this contention in that case the court said:

"It is not enough to give notice to the carrier after the contract is made, and the shipment has started in its transportation, because the liability of a carrier cannot

be increased by the subsequent knowledge of facts that did not exist in the contemplation of the parties at the time the engagement was entered into. It then became an effort upon the part of one of the contracting parties to inject a stipulation into the contract after it was entered into, that increases the liability of the other, that was not mutually considered when the engagement was made."

A careful examination of the above-cited authorities shows that, in order for special damages of this character to be recovered, the carrier must be informed at the time the contract of shipment is made of the special circumstances from which these damages will flow.

The statement of facts shows that the saws were not damaged in transit, and that there was no change or fluctuation in the market value of the commodities comprising this shipment between the time the shipment would have reached its destination if handled without unreasonable delay and the time it actually arrived at destination. Since nc special damages can be recovered in this case, the only damages recoverable are those which were within the contemplation of the parties at the time the contract was made. The articles themselves were not damaged; there was no fluctuation of the market value of these articles; therefore we conclude that the appellee in this case would be limited to a recovery of the rental value of the shipment for the time of the unreasonable delay. American Express Company v. Jennings, 86 Miss. 329, 38 So. 374, 109 Am. St. Rep. 708; Brothers v. I. C. Railroad Company (Ala. App.) 77 So. 423; Railroad Company v. Christmas, 89 Miss. 686, 42 So. 169.

Reversed and remanded.

117 Miss.-42

Where one accepts employment to obtain title to lands for his principal, but secretly repudiates this agreement and takes titles in his own name, in such case he is nothing more than a trustee ex maleficio of the title to the land.

2. SAME.

In such case the court will decree that the title be vested in the principal and that the agent be paid a reasonable compensation for his services and what he paid out to obtain title.

APPEAL from the chancery court of Oktibbeha county. HON. A. J. MCINTYRE, Chancellor.

Suit by S. H. McCreight against Mrs. M. E. Lampkin, executrix, and others. From an adverse decree, defendants appeal.

The facts are fully stated in the opinion of the court.

W. W. Magruder, for appellant.

This case is controlled or should be controlled by the equitable proposition that an agent cannot, by a breach of duty to his principal, secure and retain the fruits of any transaction, involving such breach of good faith.

This doctrine is clearly defined in Gillenwaters v. Miller, 49 Miss. 150, in which the court announces that equity will strip from fiduciaries every advantage obtained by such methods.

The agent owes an absolute duty of loyalty and fidelity to his principal and cannot be permitted to retain the fruits of any fraudulent breach of trust perpetrated against his principal.

In Winn v. Dillon, 27 Miss. 494, our court declares that a person possessed of information as to the value

and location of certain government land who sells such information to another in order to enable him to enter such land, cannot thereafter, to the disadvantage of such other person, enter the land in his own name, but that such conduct is fraudulent and that he who seeks to secure such an advantage of his principal will be held as a trustee of the title to such land.

In Fairly v. Fairly, 38 Miss. 280, the purchase by an agent of personal property for the use and benefit of his principal was held to vest an equitable title thereto in his principal.

In Murphy v. Sloan, 24 Miss. 658, we have a case closely similar to the case at bar, in which our court held that an agent, for the purpose of collecting an execution, will not be allowed in equity to deal on his own account adversely to the interest of his principal but that he must act entirely for the benefit and advantage of his principal, his purchase of conflicting equities inuring to his principal.

Appellee, in the lower court, undertook to avoid the operation of this well-defined principle of law by his reiterated insistence that he had a right, in violation of his agreement with the Lampkin estate, to take title to this land in his own name in view of his claim that the Lampkin estate was to exchange this land with him. for some uncertain twenty-acre tract of land, adjoining another place already owned by the estate. However, notwithstanding his exceedingly equivocal statements he was compelled to admit the material and controlling facts by which appellants are entitled to the relief sought by them on their cross-bill.

He also solemnly declares of record, "that crossrespondent (S. H. McCreight) accepted the proposal and exchange and agreed to render whatever service he could in securing the deeds from said Isaac Owen's heirs."

Now then, appellee, by his solemn admissions of record, admits that he made an agreement in this case

with appellants to secure for them title to the land in litigation. It is true that he also contends that they agreed to swap him these eighteen acres of land for some uncertain and undesignated twenty-acre tract of land, already owned by him. Even if appellants had made any such agreement which they most emphatically deny, that would have been a matter for specific performance or suit for breach of contract or some other action or remedy. When appellee admits, as he does admit, by these solemn admissions of his own answer to appellants' cross-bill that he made an agreement with appellants to secure for them title or rather to perfect their title to this tract of land, he admitted himself out of court in this case.

G. Odie Daniel, for appellee.

Appellants undertake by far fetched statements to show that appellee was employed by them to do this work. It is true that on some former date, appellee had rendered some slight service to appellants in the handling of their affairs in the immediate neighborhood. Appellee would have rendered them many other favors if they had asked him; and because they testify in this case that they were willing to pay him as they did other men who had been riding for them, about two dollars and fifty cents per day, certainly falls short of showing an employment. An actual employment is essential to agency. In this case, even if they had agreed to pay him for his services, the whole evidence would fail to show such an agency as would allow appellants to take advantage of their proclaimed duplicity in this case. Appellants are without any foundation of fact to support their statement that the court seems to have been largely actuated in its decision of this case by a purpose to protect the Owen negroes. It is difficult to understand how the decision of the chancellor, who tried this case, could have in any way affected the interest of