#### Chicago and Great Western Railway Company v. Patrick Hogan.

1. Tender— Questions for the Jury Under Plea of.—Where a plea of tender of damages presents the only issue in a case, the only question for the jury to determine is the amount of damages to be awarded.

*578Memorandum.—Action for damages caused by fire. Appeal from the County Court of Ogle County; the Hon. John D. Campbell, Judge, presiding. Heard in this court at the December term, 1894,

and affirmed.

Opinion filed January 24,1895.

Stephens & Eaeley and D. W. Baxter, attorneys for appellant.

J. 0. Seystee, attorney for appellee.

Pee Cijbiam.

Appellee is the owner of an improved farm of 440 acres in Ogle county, through which the railroad of appellant passes. On the 17th of September, 1893, sparks from a locomotive running on the road set fire to the grass on the meadow lands of appellee and the fire burned over seventy acres of land, destroying three large stacks of hay and burned a considerable amount of fencing. To recover damages therefor this suit was brought. A trial by jury resulted in a verdict and judgment for $750.

After suit was commenced, appellant tendered to appellee $479.45 and costs to date, which was refused. The tender was continued by leaving the money with the clerk of the court. Before trial a plea of tender was filed and the general issue withdrawn. The only question for the jury to determine was as to the amount of damages.

The proofs did not justify the amount of damages allowed by the jury. Appellee, however, has filed in this court a remittitur for $150, and we think the amount of $600 a fair estimate of the damages sustained.

Judgment affirmed as to $600 and judgment against appellee for the costs of this court.