Q. And you would not agree to it?
A. No, sir.

Q. You would not agree to any thing but 1 cent a kilowatt?

A. No, sir.

Q. Did Mr. Potter take the motor and have it repaired?

A. Mr. Potter didn't agree to anything.

Q. But immediately after the talk, you sent the motor out?

A. We didn't agree to anything, and Mr. Potter didn't agree to anything. If they wanted to accept that in pursuance of our conference, it was up to them.

On February 8, 1919, defendant wrote plaintiff asking for a check for its account. On February 11 plaintiff replied, asserting it had overpaid for July, August, and September, 1918, in the sum of $470.98, and concluding as follows: "Inasmuch as we have a further account against the Manhattan Gas & Electric Company for interruptions of current compelling shutdowns in the mill during the months of July, August, and September, 1918, as well as for the permanent shutdown compelled by the burning out of the motor until we had procured and installed a new power plant, we do not consider that we owe you anything to be paid at this time."

On February 20, 1919, plaintiff wrote defendant as follows:

"We have now in view some additions to the Manhattan mill power plant which entail a fair-sized expenditure, and so do not desire to make commitments on this matter if it is your purpose to comply with the contract for power entered into by your company and the Manhattan mill.

"In order that we may have a definite basis to work on, we desire you to telegraph us immediately whether you will or will not comply with your contract. So far, we have no definite commitments as to what you intend to do in relation to this contract, and we consider we should have this definite word from you before taking steps to protect our interests in other directions.

"Needless to say, this matter between us can be settled more satisfactorily now, if you intend to furnish current, than later."

Defendant responded by letter dated February 28, 1919, the following portions of which are material:

"The Manhattan Gas & Electric Company made, as I supposed, a definite verbal new contract with you and Mr. Thomas Page on January 19th last, when Mr. Hayden and myself were at Topeka, to the effect that we were to take out, repair, and install the burned-out motor. You were to pay without further delay your past-due account of approximately $1,016.96, and we were to furnish power through these motors when and as required by you at the station cost of current plus 10 per cent.

"Pursuant to this new deal, you gave an order to your people at Manhattan to turn the motors over to us for the purpose of repair and to reinstall, and we proceeded promptly to ship them for repair.

"In order that you may have the definite information asked for in your letter of 20th inst. and telegrams, we are ready and willing to comply in every way with our new deal and contract with you above

We

stated of January 19th. shall expect payment of your ac

count."

This letter was not answered, and the record discloses no further communication between the parties, oral or written, until November 11, 1919, when David Page questioned the power-cost basis of the bill rendered for power from September 29 to October 31. When confronted with this letter, Page finally said he meant "power charge," charge," but on March 20, 1920, in a letter to defendant complaining of service on a single day, when a gale was blowing, he said: "Then again, your power cost last month was figured on the basis of 2 cents. I do not know another power company in the West that has the nerve to charge this price for the character of service we have been given. We are con

sidering the installation of a Diesel or semi-Diesel unit to supply ourselves and some other consumers in Manhattan, as I am quite sure there will be a market for power in Manhattan at a satisfactory and remunerative price."

The bills rendered to plaintiff for July, August, and September, 1919, were paid by a check for $1,649.77 dated September 30, 1919, and marked "Paid under protest." In March, 1920, plaintiff quit paying. On July 10, 1920, defendant served written notice that if payment were not received by July 17, service would be discontinued, and after August 12 the contract would be terminated. On July 15 the plaintiff commenced this action for specific performance of the contract of 1916, for claimed overcharges "paid under protest," and for damages.

The court returned the following finding of fact: "That while there were negotiations between the plaintiff and the defendant

to change and modify the terms of said contract in respect to the price to be charged per kilowatt hour for electric current delivered by defendants to plaintiff's mill, the court finds that the minds of the parties never met, and that no contract, either oral or written, was ever entered into by the plaintiff, the Manhattan Milling Company, with the defendant, wherein or whereby the price to be charged for electric current was to be in excess of that provided for in the contract and as finally determined in the test run made under the terms of said contract, to wit, 1.1648 cents per kilowatt hour for current delivered."

As indicated, there was evidence to support the finding, and it must be accepted.

The court did not find, and could not find, that defendant repaired and reinstalled the motor pursuant to an offer by plaintiff to consider modification of the contract, if renewed service were demonstrated to be satisfactory. Defendant's testimony that no such offer was made may be left at one side. Page said

he did not agree to anything, and Potter did not agree to anything, at the last conference before suit was commenced, and the conference left the parties as widely apart as they were before. Page, however, had made himself clear. He insisted on the pound of flesh nominated in the bond of 1916, and would make no change in the pre-war rate until forced to do so. Neither would he consider later the subject of change, except on stated conditions. He had paid the plaintiff nothing since September, 1918, and on February 11, 1919, he made his position unmistakable by claiming overpayment for July, August, and September, 1918, by denying plaintiff owed defendant anything, and by tacit threat of a damage suit.

Page immediately considered an addition to the mill's power plant. He concluded, however, he would first get a definite commitment from the defendant as to whether or not it intended to comply with the old contract, and he got it. He said he wanted a definite basis to work on, and it was better to settle the matter then than later, an attitude which the law relating to involuntary payments commends. He received a categorical answer, in unequivocal and perfectly understandable terms.

Without any warrant of fact for so doing, Page chose to treat defendant's answer lightly. He testified he thought defendant was jockeying. He could not bind defendant by what he thought, and, in any event, what he thought is not material. Whether or not defendant would furnish electric current at the contract rate was still, from his standpoint, just where he said it was after the January conference; that is, "up in the air." He still had no commitment of defendant to anything as a basis to work on, but the asserted new contract for cost plus. In fact Page and his witnesses made no pretense they ever had any intimation from defendant that it would go back to the contract of 1916, and the bill for the first month's service, after the motor was reinstalled on

July 1, 1919, was not in accordance with that contract, but was computed on a cost-plus basis. The bill was not paid. The bill for the second month's service, computed on a costplus basis, was rendered, and was not paid. The bill for the third month's service, computed on a costplus basis, was rendered. The three bills were then paid by one voucher check, bearing the words, "Paid under protest." Of course, protest was a mere gesture, unless there was duress in fact, and in that event protest was unnecessary.

Page and his witnesses did not testify that discontinuance of service was actually threatened before the 1919 bills were paid, or that they actually feared service would be discontinued if the bills were not paid. We have, therefore, a situation in which defendant merely possessed a means of coercion should it choose to employ it, but coercion was not certainly and presently impending. How did that situation come to exist? The answer is: By plaintiff's voluntary election, made when it was on equal terms with defendant and with full knowledge of all the possible consequences.

When the repaired motor was brought to the mill for reinstallation, defendant had not only given no sign of receding, but had commenced in April to charge for current on the cost-plus basis. Page knew then just what power his steam plant could deliver. He testified he could not get coal. He knew from the experience of the year before just what his situation would be when the milling campaign following harvest commenced. He could not have forgotten his distress in 1918, when, in fear lest his power should be switched off, he submitted under protest to an illegal and unjust increase in rate, in order to keep his mill running. With all this knowledge, and with his relations to the defendant in the state of uncertainty and hostility in which they had remained since February, he permitted the motor to be installed,

disconnected his steam plant, and commenced to operate his mill with electric energy supplied by defendant.

It is elementary that the law does not recognize privilege to pay an illegal demand and then to sue for the money. It is only Assumpsitwhen, in an emer- when payment gency for which he voluntary. is not responsible, a person finds he has no choice except to pay in order to protect his business interests, that he may recover. If, with knowledge of the facts, he voluntarily takes the risk of encountering the emergency, the payment is voluntary. In this instance there had been open antagonism between the parties for a full year respecting rate. When renewal of service was about to take place without any composing of differences, plaintiff was called on to choose whether or not it would again place itself in defendant's power. It decided to do so, and must abide the consequences.

Plaintiff's superintendent testified plaintiff was glad to get renewal of electric service. If insufficiency of the steam plant and inability to get coal dictated the policy of taking electric current under peril of having to meet defendant's exactions, the principle applies which this court approved in Kelly v. Miami County, 85 Kan. 38, 116 Pac. 477. An unjust or illegal demand must be resisted at the threshold, because payment under protest may not be employed by way of strategy in dealing with an adversary.

cause the jury say that appellant did not threaten, unless the excessive charges were paid, to disconnect the dwelling-house stove, and also swered that there is no evidence that it threatened to disconnect the office stove. Evidence admissible under the second paragraph would not necessarily be limited to a direct threat. Appellee averred that he had no other means or appliances for heating, and, to prevent the gas from being turned off, he paid the illegal and excessive charges under protest. The answers of the jury do not negative the fact that there may have been evidence of such conduct on the company's part that appellee could rightfully conclude that if he did not pay the charges demanded the gas would be disconnected, although no direct threat to that end was made. Besides, if appellee paid the excessive rate as a matter of necessity, to obtain what he was justly entitled to, he may recover it back, although he knew at the time of the payment that the demand was unjust. If appellant had the right to turn off the gas unless appellee complied with its demands, the parties were not treating upon equal terms. Such would not be a case of payment, upon a mere demand, of money, unaccompanied with any power to enforce the demand except by an action at law." And reviewing a controversy between the appellee and appellant concerning the gas rate, wherein the latter asserted that the former could pay the rate charged or cease to burn the gas, it was declared that this amounted to a statement that gas would not be furnished if the rates were not paid.

And in Boston v. Edison Electric Illuminating Co. (Mass.) supra, an action brought to recover overcharges for electricity, wherein it appeared that the city was dependent on the defendant for light and power to perform its corporate functions, it was declared that a jury could find that, under the circumstances, payment was necessary as the only means of immediate relief, and that where money was paid under compulsion the law

implied an obligation to refund it. It did not appear in this case that the payments were made under protest.

Panton v. Duluth Gas & Water Co. (1892) 50 Minn. 175, 36 Am. St. Rep. 635, 52 N. W. 527, was an action to recover an alleged excess of water rent paid by the plaintiffs under threat of having their water supply cut off. The court said: "The question is presented, and may be expected to again arise upon a second trial, whether the circumstances under which the plaintiffs made the payment were such that the payment may be regarded as having been so far compulsory or necessary that an action will lie to recover it back. We are of the opinion that it is to be so regarded. In buildings as now constructed in populous cities, where there is an adequate supply of water, and especially in buildings occupied by so many persons as are shown to have been employed in the plaintiffs' store, water-closets may well be regarded as reasonably necessary. The closets provided for use on these premises, and comprising a part of the building, would have been useless unless supplied with water; and there was no other practicable source of supply save that afforded by the defendant. The defendant was under legal obligation to supply water at the proper price. It was the plaintiffs' right to have it thus supplied. The defendant, of its own will merely, and without any legal determination as to the disputed fact upon which the exercise of such a power depended, was about to cut off the whole water supply from these premises. This was a kind of execution in advance of judgment. The plaintiffs. would be compelled to submit to being deprived of the use of water on their premises until, by such legal proceedings as they might institute. for that purpose, they could legally establish the fact that the charge was excessive. Their only alternative was to pay what was demanded of them. We think that such a case falls within the class in respect to which it may be said that the payment is virtually compulsory, and not voluntary, in the