(No. 2304

#### Peabody Coal Company, a Corporation, Claimant, vs. State of Illinois, Respondent.

Opinion filed June 1, 1935.

M. J. Cherry, for claimant.

Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.

Mr. Justice Linscott

delivered the opinion of the court:

This is a claim filed by the Peabody Coal Company on December 20, 1933, and contains common counts and also a special count, and alleges that on the 9th day of March, 1932, after a bid regularly made, the State, through its Division of Purchases and Supplies, by purchase order D-27044, signed by A. W. Daily, State Purchasing Agent, a copy of which is attached to the declaration, ordered- shipped to the Kankakee State Hospital, Kankakee, Illinois, five thousand (5,000) tons No. 3 Nut or Chestnut coal at a price per ton of Three and 86/100 ($3.86) Dollars. This price was later reduced to Three and 81/100 ($3.81) Dollars per ton, delivered at the institution grounds; that thereafter shipments were made by the coal company as requested and required by.the Kankakee State Hospital up to and including the 6th day of April, 1933, and this constituted an overshipment of 1,276.75 tons more than the contract called for; that thereafter, the State paid the Pea*715body Coal Company for 427.5 tons of the overshipment leaving the State indebted to the Peabody Coal Company for $849.25 tons of coal, as shown by the statement contained in a Bill of Particulars which was filed with the case.

On the 26th day of August, 1933, the coal company presented its claim to J. J. Rice, Director of Department of Finance, who advised that the claim be taken up with the Managing Officer of the Kankakee State Hospital, Kankakee, Illinois; that on August 29,1933, this matter was taken up with A. W. Daily, State Purchasing Agent, who advised that this matter be presented to the Chief Clerk of the Kankakee State Hospital, a Mr. Kruger, who upon request was furnished an itemized statement of account showing car numbers, weights and amount due; that on the 27th day of September, 1933, Mr. Kruger, Chief Clerk of the Kankakee State Hospital, advised the Peabody Coal Company that previous thereto, on to-wit: the 5th day of May, 1933, he furnished requisition number 469 to Springfield; that upon receipt of that advice the matter was taken up with J. J. Rice, Director of Department of Finance, A. W. Daily, State Purchasing Agent, and A. L. Bowen, Director of Department of Public Welfare, and up to this date, claimant has not received payment of this claim for the reason, as it has been advised, that appropriations made by the General Assembly have been exhausted and no funds were available to pay said claim.

From the stipulation in the file, it appears that all the averments in the declaration are true. This stipulation was filed by the Peabody Coal Company and by the State Department of Public Welfare, by A. L. Bowen and the stipulation is approved as to form by the Attorney General. In the stipulation, it is admitted that there is due and owning the Peabody Coal Company the sum of Three Thousand Two Hundred Thirty-five and 67/100 ($3,235.67) Dollars for 849.25 tons of Chestnut coal at Three and 81/100 ($3.81) Dollars per ton delivered to the Kankakee State Hospital.

It is further stipulated that the claim is a just one and should be allowed.

Some contention arose as to the payment of this claim because of an overshipment; that is, because more coal was shipped than was in the original contract of 5,000 tons, but *716it appears from the evidence that this coal was actually ordered by the proper department.

It appearing that the State did receive this coal; that proper officers knew that the claimant was shipping more than provided in the contract, and that they had requested shipment of this coal, and the State having received the use and benefit from the shipments, the claim should be allowed, and the Attorney General recognizes that fact and says that he makes no objection to an award being recommended by this court for the amount of the claim, namely: Three Thousand Two Hundred Thirty-five and 67/100 ($3,235.67) Dollars.

An award, therefore, in favor of the Peabody Coal Company against the State of Illinois is hereby recommended for the sum of Three Thousand Two Hundred Thirty-five and 67/100 ($3,235.67) Dollars.