(No. 1037

#### W. G. Sutton, Claimant, vs. State of Illinois, Respondent.

Opinion filed April 29, 1927.

Ernest J. Henderson, for claimant.

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

Mr. Justice Thomas

delivered the .opinion of the court:

The claimant, who is the owner of a coal mine at Minonk, Illinois, on the 10th day of April, 1923, filed a bid with the Department of Public Works and Buildings, in the Division of Purchases and Supplies, of Springfield, Illinois,' to furnish 15,000 tons of screenings 1%" at the mine at Minonk, Illinois. His bid was $2.00 per ton F. O. B. mine. That before submitting his bid he called the agent of the Illinois Central Railroad Company at Minonk, and also at Pontiac, Illinois, asking' for the freight rate from Minonk on coal in carload lots delivered at the institution, and was informed at both places that it would be $1.04 per ton, and upon this information given him, he submitted his bid, showing that the freight rate would be $1.04 per ton, and upon his bid of $2.00 per ton F. O. B. mine he was given the contract to furnish 15,000 tons of screening iy2", to be shipped to the Illinois State Reformatory at Pontiac. The claimant shipped the coal as directed to the Illinois State Reformatory, routing the same over the Illinois Central Railroad, and in care of the C. & A. Railroad Co., for delivery at the institution, and that he paid the freight rate of $1.04 per ton to the Illinois Central Railroad Company, at Minonk, and inclosed the same in the statement to the Department of Public Works and- Buildings, together with his bill for the coal, and was paid the sum of $3.04 per ton. That about two years afterwards the Illinois Central Railroad Company demanded of claimant the further sum of $395.97 for an undercharge. The rate of $1.04 paid to the Illinois, Central Railroad Company was the rate from Minonk to Pontiac, and that rate did not include the rate of the C. & A. Railroad Company’s rate of .67 cents per ton less $9.00 per car *335which was' included in the Illinois Central Railroad Company charge. The Illinois Central Railroad Company entered suit against the claimant for the undercharge of $395.97, and the claimant made an investigation and found that the rate of $1.04 did not include the C, & A. Railroad rate, and he settled the claim by paying the sum of $395.97 on the 30th day of January, 1926, to the Illinois Central Railroad Company, and files this claim to be reimbursed.

The Attorney General, on behalf of the State, first filed a general and special demurrer to the declaration, but after-wards filed a statement, including the copy of a letter from the director of the Department of Public Welfare, stating that the facts as set forth in the claimant’s declaration had been investigated and found the same to be true and that the claim was just.

As it is clear, from the sworn declaration, that the claimant had paid out the sum of $395.97 and that the State has been benefited to that amount, the demurrer will be overruled and claimant is allowed an award for that amount.