(No. 1035

#### Bonner & Marshall Brick Co., Claimant, vs. State of Illinois, Respondent.

Opinion filed May 12, 1927.

W. G. Thon, for claimant.

Oscar E. Carlstrom, Attorney General ; Frank R. Eagleton, Assistant Attorney General, for respondent.

Mr. Justice Leech

delivered the opinion of the court:

. The declaration filed by claimant alleges that it is a corporation duly organized and existing under and by virtue of the laws of the State of Illinois; that on. or about the 1st day of April, A. D. 1920, it entered into a written contract with the State of Illinois to furnish brick to the State of Illinois, in accordance with terms and prices for said brick as set forth in statement attached to and made part of said declaration; that there is due to it from the' State of Illinois the sum of $3,605.20 for brick furnished to the State of Illinois, in accordance with the terms of said contract; that claimant was informed by said Department of Public Works and Buildings that the appropriation out of which its claim would have to be paid, was exhausted and that the only method whereby claimant could receive payment of its claim would be by having its claim allowed by the Court of Claims of the State of Illinois.

A demurrer was filed by the Attorney General to this declaration, which, as a matter of law, is sustained.

There is n.o dispute as to the major portion of this claim. As item of $580.00 is in disjpute, it being contended that a certain number of brick had been rejected at the institution where shipped, and that the last carload of brick shipped would be considered a replacement of said rejections.

We do not believe that the facts in the case justify this conclusion. We accordingly award claimant the sum of $3,605.20.