The opinion of the Court was delivered by
Fenner, J.The City of New Orleans leased the wharves to defendants by a contract commencing on the 29th of June, 1875, and ending on the 29th of May, 1881. At the beginning of this contract many vessels were lying at the wharves which remained there and enjoyed the facilities after the rights of the defendants accrued. The City claimed the right to the entire wharfage dues of vessels which moored prior to defendants’ contract. Defendants claimed a proportion of said dues corresponding to the length of time during which the vessels remained after their contract. Defendants yielded, and the contract was interpreted and executed according to the City’s view.
Acting under this construction, defendants collected the entire wharfage dues of all vessels mooring prior to the expiration of their contract—exercising thereby a right which certainly the City could not, in good faith, dispute.
On the day after the expiration of defendants’ contract, the City executed a new lease of the wharves to Aiken & Co., the present plaintiffs.
They bring the present action against the defendants to recover the proportion of wharfage dues collected by the latter from vessels arriving before, but remaining after, the beginning of plaintiffs’ contract.
It appears from the evidence that the wharfage dues are fixed at a certain sum per ton for sixty days or any part thereof. They are the same whether the vessel remains one hour or sixty days. They would seem, therefore, to be as completely earned after the vessel had moored at the wharves as at any period thereafter of the sixty days. Although file ordinances of the City do not prescribe that they become due on *568the date of arrival or at any fixed day, yet the admitted custom of both plaintiffs and defendants to present the bills for wharfage as soon as the Vessel arrives, establishes the understanding of both that they ate then due. Bills are not usually presented for payment before they are considered to be due. The evidence is that the bills are sometimes paid on presentation, while at other times delays were allowed.
If the'bills were due on arrival, defendants had a right to collect, and owe no account therefor to any one.
But, at all events, it seems clear beyond the possibility of cavil, that the City, under her own construction and execution of her contract with defendants, would have been conclusively estopped'.from questioning the latter’s right to make such collections. There exists no privity whatever between plaintiffs and defendants. Plaintiffs have no rights whatever in the premises, except such as were derived from the City. How could they derive from the City a right which the City herself did not possess?
We may admit that plaintiffs are not bound as to their own contract by a construction which had been placed by the City on a former similar contract with a different party, in absence, at least, of proof of knowledge thereof in the plaintiffs. But this does not help the case. If, as plaintiffs contend, the City conveyed to them the right to collect their share of wharfage- due by vessels lying at the wharves at the date of their contract, the fact that the City did not possess such right, and could not transfer and deliver it, might furnish ground for art action for indemnity against the City, but could create no claim against the defendants.
There is not only absence of legal right in plaintiffs’ case, but even of hardship on them, since, at the expiration of their own lease, they will exercise the same privilege which has been asserted by defendants'.
Judgment affirmed.