letter the City sent Burman a complete copy of the Act of Assembly under which the bulkheads were built and which set forth the circumstances under which abutting property owners were required to pay for them. Far from being an attempt at misrepresentation this was a complete disclosure to the Company of the statutory provisions requiring payment of the cost of bulkheads by abutting property owners only when they were to be used for wharf purposes. The correspondence thereafter clearly indicates that it was not the City, but the Company, which in each instance brought up the matter of payment.
But even if such a representation had been made it would not have been a misrepresentation of fact, but merely the statement of a legal conclusion. It has long been held that money voluntarily paid on a claim of right where there has been no mistake of fact cannot be recovered back on the ground that the party supposed he was bound in law to pay it when in truth he was not. Union Insurance Co. v. City of Allegheny, 101 Pa. 250; Peebles v. City of Pittsburgh, 101 Pa. 304, 47 Am.Rep. 714; Shenango Furnace Co. v. Fairfield Township, 229 Pa. 357, 78 A. 937; Investor's Realty Co. v. City of Harrisburg, 281 Pa. 200, 126 A. 236. This rule is particularly applicable to the present case for here, as I have pointed out, the first step taken by the City was to send the Company a complete copy of the Act of Asssembly under which the payments were to be made. The Company, therefore, unquestionably had just as much opportunity to ascertain its legal rights and liabilities with respect to the bulkheads as did the City.
When thereafter it tendered payment of their cost to the City it can only be assumed that the Company desired to pay the cost in order to have the full and unrestricted right at any time in the future to use the bulkheads for the purposes specified in the Act of 1913. The fact that it did not contemplate such use immediately was of no consequence since it is clear under the terms of the act that payment of the cost of the bulkheads must be made prior to the use of them.
The Company urges that the transactions were intended to effect a sale of the bulkheads by the City to the Company and that the Department had no power under the statute to pass title. Consequently it says that there has been a failure of consideration. I do not so view the transactions, however. It seems clear to me that what the Company desired to secure by its payments was the unfettered use under the Act of 1913 of the bulkheads in front of its property, together with the control of them which would necessarily accompany such right of use. Whether it acquired title or whether the Department could pass title is, I think, entirely immaterial. What the Company desired to get and what it did get through the payments it made was the perpetual use of the bulkheads in question free and clear of any and all future claims by the City against the abutting property for their cost.
On the other hand the City urges that since the payments in question were placed by it in a special fund and applied to the purposes specified by the statute its position has been changed and the Company is, therefore, estopped from recovering the payments. In the view I have taken, however, further consideration of this point is unnecessary. Nor is it necessary to consider, the constitutionality of the statute, a point raised in the statement of claim, since it was not pressed by the Company at the trial. It is sufficient to say that the Circuit Court of Appeals for the Third Circuit has held it constitutional. City of Philadelphia v. Standard Oil Co., 79 F.2d 764.
Conclusions of Law
The payment by the Company to the City of $51,443.42, the cost of the bulkheads in question, was a voluntary payment not made under a mistake of fact, but was in anticipation of and for the perpetual right to use said bulkheads.
The finding of the court must be in favor of the City.
I accordingly find against the plaintiff and in favor of the defendant.
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