(concurring specially): I think the conclusion reached is correct on both counts, and I am not seriously opposed to the process of reasoning in the first count, but am inclined to think that accord and satisfaction is relied upon more strongly than is necessary. My own conclusion as to the first count was. influenced largely by the following: There had been two contracts between the parties —one of 1906, the other 1909. Each provided the rate of one and one-fourth cents per kilowatt hour. The contract of 1909 provides, among other things:
“If, after the installations are made as herein provided for by the party of the first part, it should be ascertained after careful trial and demonstration, that the water power is unsatisfactory and insufficient to operate the mills of the party of the first part and the plants of the party of the second part, then this contract shall be abrogated and declared null and void, and in such event the contract made January 2, 1906, . . . shall be in full force and effect,” etc.
Now, when the parties were having their controversy in 1919 with regard to a termination of the contract, the question was not one of the rate to be charged or paid, but it was one of insufficiency of current. The mills had been repeatedly shut down within the year then last past in order to give current to the electric company. “Mr. Bowersock said a good crop of wheat was coming and they were going to run the mills whether there was any light or not.” In the injunction suit brought there was no intimation in the pleadings or the evidence that the rate was inadequate. The controversy between the parties did not pertain to the rate. No higher rate was asked. Plaintiff made no suggestion that it might furnish the current if an additional rate were paid, and there was no dickering or controversy, or even talk, about the question of rate. Plaintiff was unable, with *32the facilities it then had, to furnish enough electric energy for its own purpose and for defendant, and wanted to quit furnishing electric current for defendant in order that it might use the current for its own business. That was the whole controversy. The trial court found:
“There is no evidence whatever that the plaintiff intended at the time of the rendition of its several monthly statements from July, 1919, until January, 1922, to charge an additional amount in excess of the contract price for the energy furnished, or one and one-fourth cents per kilowatt.”
Now, it may well be said that even if the contract of 1909 were abrogated plaintiff was still bound to furnish current generated by water power under its contract of 1906 at one and one-fourth cents. But whatever the reason was, there was no controversy between these parties over the rate to be paid for power furnished. With no controversy pending as to the rate, plaintiff made bills from month to month computed upon the electric energy consumed at one and one-fourth cents, and was paid in full each month for the current furnished. I think the effort to get more for this current was an afterthought; it is a contention that was not made by plaintiff until after the final determination of the injunction suit in this court. If this analysis of the situation is correct it doesn’t make much difference what reason was given by the trial court for its ruling — the plaintiff is not entitled to recover.
The real reason, in my judgment, is that, first, the contract of the parties provided the rate of one and one-fourth cents even in the event of the 1909 contract being abrogated; second, that the parties so understood that and acted upon it. If there can now be said to have been any controversy between the parties on this question it was settled and determined by the manner in which the bills were rendered and the payments made, and therefore disposed of under the doctrine of accord and satisfaction; and in view of all the facts and circumstances the plaintiff is estopped from contending that he should have more money. Neither do I regard this conclusion as -being any specific hardship on plaintiff. While it is true a part of the electric energy was generated by steam at a slightly increased cost of production, yet by far the greater part of it was generated by water power, with no evidence to indicate an increased cost of such production. I do not think it can be said, under the record in this case, that the current furnished cost more to produce than plaintiff has already received.