(dissenting).
I dissent. The excavation called for by the contract with the county was 158,545.06 cubic yards. The engineer ordered plaintiff, the subcontractor under defendant, to excavate 53,444.6 yards additional; which he did. He sued defendant for this extra excavation at 9|- cents per cubic yard, the contract price; also for $512.44 extra for bridge and roadwork. Although defendant denied all knowledge of and liability for the extra work, it collected from the county $3,152.93 therefor, being the 10 per cent additional to the contract price which the engineer was authorized to order extra under section 5526, G-. S. 1913, and $600 which the county took out of some *445available fund. We held in Seastrand v. D. A. Foley & Co. 135 Minn. 5, 159 N. W. 1072, that this whole sum so collected by defendant should be turned over to plaintiff:, since defendant renounced all connection with and responsibility for that extra work. The result was that by that litigation defendant was freed from any and all obligation to plaintiff upon its paying over to him $3,152.93, the amount it had received from the county as money had and received for his use. Plaintiff was still left unpaid for 25,660 cubic yards of the extra excavation, amounting to $2,437.75 at 9-¿ cents per yard. He had no legal claim either against defendant or the county. He had, however, a moral claim to be paid. Defendant had no legal or moral claim on account of this extra unpaid work. At this juncture the legislature authorized the county to pay therefor. The county paid to defendant $4,307.13. Defendant was instrumental in securing the legislation, and it is right that it be reimbursed for the legitimate expense thereof, which was $905.62. Deducting this sum leaves $3,401.51 for the 25,660 yards of extra excavation which plaintiff had not been paid for. No doubt the legislature intended to give the one who did the work compensation therefor, and did not mean to bestow a gratuity on one who had denied all responsibility for it. Giving plaintiff his contract price of 9-3,- cents per yard, or $2,437.75, still leaves defendant $65.66 over and above the profit of 3-3,- cents per yard which it would have received had its contract with the county embraced this unpaid excavation work.- I think that is all defendant in equity and good conscience should be allowed to retain.
Viewing the situation from another angle we may arrive at the same result. The money was appropriated so that the one who did the work should be paid. The size of the appropriation indicates that it was the intention that he should be paid the full contract price. This was 9-3,- cents per yard which defendant had agreed to pay plaintiff for extra excavation. At this rate there was due him $2,437.75. . He has long ago paid his men who did the work and is out the interest. But let him have that sum, it would be the amount defendant should have paid had it, instead of the engineer, ordered, plaintiff to do this extra work. Plaintiff should now equitably be *446entitled to that sum out of what defendant lias received for Ms use. To the balance he has no claim. Defendant is entitled to retain it, even if there had been no expense connected with the legislation which authorized the payment. I think the learned trial court arrived at the right conclusion. Defendant receives enough profit out of work it entirely repudiated and denied connection with.