(No. 4718

#### The Texas Company, A Delaware Corporation, Claimant, vs. State of Illinois, Respondent.

Opinion filed March 22, 1957.

James W. Campbell, Attorney for Claimant.

Latham Castle, Attorney General; Richard F. Siman, Assistant Attorney General, for Respondent.

Tolson, C. J.

On April 2, 1956, The Texas Company filed its complaint to recover payment in the amount of $164.28 for gasoline and oil sold to the state.

*511A Departmental Report was admitted in evidence, which verified the claim with the exception of one item in the amount of $3.84. This item should have been charged to the new appropriation for the 68th Biennium. Further, the Departmental Report shows that the only reason the claim had not been paid was that the appropriation lapsed before it could be processed.

This case was heard by Commissioner Herbert Gr. Immenhausen, and his report in the following words and figures is hereby adopted by the Court:

> “Commissioner’s Report

> The Texas Company, A Corporation, by James W. Campbell, its attorney, filed its claim in the above entitled case on April 2, 1956, wherein it seeks to recover $164.28, balance remaining due and owing claimant from various Departments and Divisions of the State of Illinois for gasoline, oils, lubricants and miscellaneous automobile parts in accordance with Purchase Order No. 117143, dated June 21, 1954, issued by the Department of Finance, Division of Purchases and Supplies, for the State of Illinois. Said products were for the use of the Division of Highways during the period beginning July 1, 1954, and ending June 30, 1955. During the period covered by said Purchase Order, the claimant delivered various quantities of petroleum products, materials, etc., to authorized representatives of said departments and divisions of the state at the agreed price. That there is due and owing $164.28 for which claimant has not received payment due to the fact that the claim was not presented before September 30, 1955, the last day on which payment could have been made under the appropriation established for that purpose.

> Your Commissioner, Herbert G. Immenhausen, set the case for hearing on January 18, 1957, 10:30 A.M., in Room 827, 160 N. LaSalle Street, Chicago, Illinois.

> The respondent, State of Illinois, did not file an answer to the complaint. Respondent filed a Departmental Report of the Division of Highways as follows:

> ‘Report of the Division of Highways Court of Claims Case No. 4718

> The Texas Company vs. State of Illinois

> Claimant’s exhibit A is a true and correct copy of Purchase Order No. 117143 issued to the claimant corporation by the State of Illinois, Department of Finance, Division of Purchases and Supplies, on June 21, 1954. The purchase order was effective for the period of July 1, 1954 to June 30, 1955, both dates inclusive.

> *512It has been confirmed that the individual purchases as listed in claimant’s Bill of Particulars were made by authorized representatives of the respective departments and divisions named; that the materials purchased were used in state owned motor vehicles; that the quantities of materials are correct; and the unit prices charged are in conformity with the bid prices on file in the Division of Purchases and Supplies.

> Claimant's invoices (sales tickets) could and would have been paid in the regular course of business, if they had been scheduled in sufficient time to be vóuchered before September 30, 1955. Appropriations for the 68th Biennium were in existence, and funds available in them for the payment of claimant’s invoices.

> One purchase is excluded from the above report. Reference is made to item No. 16 on sheet 1 of the Bill of Particulars. It will be noted that the purchase was made on July 12, 1955; therefore, not made under claimant’s Purchase Order. The invoice representing that purchase may be scheduled for payment from a current or 69th Biennium appropriation. December 11, 1956

> /s/ Earl McK. Guy

> Engineer of Claims’

> Claimant called George W. Starnes, Assistant Chief Accountant, as a witness, who identified claimant’s Exhibit No. 1 — Purchase Order. It was introduced in evidence. He also identified items on the Bill of Particulars and sales slips signed by. authorized agente of the State of Illinois, which also were admitted into evidence.

> The attorneys for claimant and respondent filed a motion with the Court of Claims on February 6, 1957 to waive the filing of briefs and arguments, so that the Court might proceed to dispose of the case upon record.

> It appears from the evidence that the materials purchased were used by authorized representatives of respective departments and divisions named in state owned motor vehicles, and that the unit prices charged were in accordance with the Purchase Order in the amount of $164.28 — except item No. 16 for $3.84 dated July 12, 1955, which was after expiration of Purchase Order that expired June 30, 1955. It appears that the only reason these bills were not paid was because they were not presented and certified before the appropriation lapsed on September 30, 1955. Tire award should be made for $160.44 to the Texas Company, Inc.”

An award is, therefore, made to The Texas Company, a Delaware Corporation, in the amount of $160.44.