Dissenting Opinion.
Manning, J.The City ordinance does not fix the time when these wharfages are due and collectible, nor is there any stipulation in either of the contracts about it, nor uniform custom regulating it. Sometimes they were collected on the arrival of the vessel (one of the witnesses says most of them were), and at others during the first Week or later. There was no fixed time for collecting them.
Prior to the Eager-Ellerman contract the City collected them herself, and the same thing had of course occurred when that contract begun as now. The City had collected wharfage of many vessels on their *569arrival, whose period of detention extended over into the time covered by the Eager-Ellerman contract, and these contractors had made the same demand of the City that is now made of them. The City refused to pay any portion of what she had collected, and told them to serve' their successors in like manner. They acted on her suggestion, and’ hence this suit.
• The collection- of the wharfage when the vessel moors seems the’ better rule, and if the practice was made uniform of each contractor collecting on the ship’s arrival and retaining the whole, leaving his successor the same privilege, no injustice would be done anybody.But however excellent the rule, it has been neither made nor acted on save by the City when she arbitrarily interpreted her first contract with Eager, Ellennan & Co. in that way. Had she then incorporated the stipulation in her subsequent contracts, there would have been no room for controversy. The plaintiffs stand on their legal rights, and I cannot gainsay them.
The defendants had judgment below on a ruling that there was no privity of contract between them and the plaintiffs, but it is not a question of contract between these parties. The suit is not upon a-contract, but for money had and received. If the defendants received from the vessels money, a part of which equitably belonged to the plaintiffs, an action will lie to recover such rateable portion. The gist of the action is the obligation of the defendants to refund the money, or such portion of it as rightfully belonged to the plaintiffs.
The justification of the collection of wharfage is the expense incurred in providing facilities for vessels, such as wharves, piers, landings, etc., and the sums imposed are theoretically apportioned to the amount necessary to keep these appliances in-repair. It is reasonable, then, that those whose duty is to keep in repair the wharves and landings, should be entitled to the charges imposed for that special purpose, and time must necessarily enter as a-factor in the calculation where the duty and tlie right have shifted during the period of detention.
If a score of vessels arrived on the last day of Eager-Ellerman’s contract, and paid them the wharfage for the full time they are allowed to remain, the wear and tear of the wharves during fifty-nine days of their stay must be borne by Aiken & Co., and they are entitled to their proportion of the wharfage collected.
The fact that some one connected with the City government had construed Eager-Ellerman’s contract to mean that they were not entitled to any wharfage already collected, and that they chose to accept tliat construction rather than sue the City and get a judgment *570that might not be worth the getting, furnishes no reason to preclude the plaintiffs from asserting their rights.
The tabular statement in evidence shews that the defendants received wharfage for a large number of vessels whose detention lapped over into the time covered by the plaintiffs’ contract, and that the proportion of the sum thus received, which the plaintiffs are equitably entitled to, is $6,511.75. I think they should have judgment for it, with legal interest from June 14, 1881.