On Motion for Rehearing.
[4] This being an action to recover special damages, it is insisted by appellant that it was essential to show that the telegraph company had notice of the resale of the cattle at the time it received the telegram for transmission. In the original opinion we recited a conversation occurring between appellee and the agents of the company, in which he claimed to have notified them of such contract and the purpose and object of the telegram. But it is contended on the part of appellant that this conversation did not occur at the time the telegram was delivered to the company’s agents, hut several days, thereafter, for which reason it is insisted that the evidence is insufficient to warrant the verdict in appellee’s favor. Conceding that the conversation did not occur at the time of the delivery of the telegram to. appellant’s agents, still- it does not follow that appellant would be entitled to have the verdict set aside, for the reason that the court submitted the case to the jury on a general charge which authorized a recovery by appellee without such proof, and which charge must be regarded as approved by appellant, since it failed to except thereto. See Acts 1913, p. 113; article 2061, vol. 2, Vernon’s Sayles’ Rev. Civ. Stats.; Floegge v. Meyer, 172 S. W. 194; Railway Co. v. Bartek, 177 S. W. 139; Railway Co. v. Alcorn, 178 S. W. 833; Steele v. Dover, 170 S. W. 813; Railway Co. v. Barnes, 168 S. W. 991; Elser v. Putnam, 171 S. W. 1052; Railway Co. v. Wadsack, 166 S. W. 45; I. & G. N. Ry. Co. v. Bland, 181 S. W. 504. See, also, Hume v. Carpenter, 188 S. W. 707, decided by this court June 14, 1916, not yet published. Nor was any special charge requested by appellant covering this feature of the case.
It is true that appellant did ask a peremptory charge in its favor, but reserved no exception to the refusal of the court to give the same. As appellant, under the authorities above cited, must be regarded as having acquiesced in the charge given, it cannot now, we hold, complain that the verdict is unsupported by the evidence, because it failed to show want of notice of the purpose and object of the telegram when delivered; and especially is this true where the evidence, as in the instant case, under the charge as given, warrants the verdict.
So believing, we think the' motion for rehearing should be overruled; and it is so ordered.
Motion overruled.