#### William Cassel, Appellee v. Chicago, Burlington & Quincy Railway Company, Appellant.

Tender—effect of, in an action for damages occasioned ty fires communicated Toy locomotive engines. A tender of a specific amount by way of damages admits damages to such amount, and the only question to be determined on review is whether or not the damages awarded in excess of that amount are excessive.

Action commenced before justice of the peace. Appeal from the County Court of Fulton county; the Hon. J. D. Bbeckbnbidge, Judge, presiding.

Heard in this court at the November term, 1907.

Affirmed.

Opinion filed April 21, 1908.

Harry M. Waggoner, for appellant; Chester M. Dawes, of counsel.

U. G. Butcher, for appellee.

Mr. Presiding Justice Baume

delivered the opinion of the court.

Appellee recovered a judgment against appellant before a justice of the peace for $75, for damages occasioned by fires communicated to the property of appellee by locomotive engines operated by appellant. On appeal to the County Court, a trial by jury resulted in a verdict and judgment against appellant for $65, including $15 for attorney’s fees. After the trial of the case before the justice of the peace, appellant tendered to appellee the sum of $48.30, being $40 for damages and $8.30 for costs accrued up to the time of the tender.

By making a tender of $40 for damages sustained by appellee, appellant must be held to have admitted its liability to pay damages to that amount and, therefore, the only question properly before the trial court and before this court on this appeal, was and is, the amount of damages actually sustained by appellee. A careful consideration of the conflicting evidence, as it *594appears in the record, impels us to the conclusion that the verdict of the jury awarding to appellee the sum of $50 for the damages sustained by him, is not so excessive as to warrant us in setting it aside. The judgment of the County Court will, therefore, be affirmed.

Affirmed.