We do not see anything in the facts, as reported.by the auditor, that tends to show that the plaintiff corporation are not in a proper state and condition to do the business they were intended to do,— to maintain suits and all other legitimate business. The fact that their elections have not been liolden every year is immaterial, since, by the provision of their by laws, their officers are “ to hold their office for one year, and until others are chosen in their place.” Parsons v. Powder Works, 48 N. H. 68; Boston Glass Co. v. Langdon, 24 Pick. 49, 54.

Nor do* we see anything in the case, as stated by the auditor, that shows that there was any permanent contract between these parties, or anything more than an agreement from year to year. The auditor is, no doubt, correct in his conclusions on that point.

The defendant admits that he used the water that ran through the company’s pipes, and through the gauges upon his premises, during the time charged for ; and the only question is, whether he shall pay $10 or $12 per year for the use of this water.

The referee finds that in 1869 the directors decided to charge §6 for the same amount of water for which they had charged $5 before, and it was finally determined that this change should take effect March 1, 1870, and the consumers were notified accordingly; and the case finds that this defendant was notified prior to March 1, 1870, of the contemplated change. The case finds that the defendant did not assent to this change, but it does not find that he dissented when he received the notice, and perhaps that is not material. But it seems that he had concluded not to pay the advanced rates, when, on March 1, 1870, he was called upon to pay in advance for that year. Then he refused to pay the $12 per year, but stated what he would pay, and the most ho would pay; and we think that the company, upon his refusal to pay the advanced rates, should have stopped the water from flowing to his premises, as they were authorized to do by their by-laws.

We have no doubt the plaintiff company might properly raise these rates; and, so far as appears, it was properly done by the directors, though the case does not fully show what their powers and duties were. If they acted within the scope of their authority in this matter, as we presume they did, their action was proper. The company have the right, in some way, to regulate that matter, and, if the power is conferred specifically upon the directors, or if it is included among the general powers with which they are vested, then it has been properly exercised. Assuming that to be so, we are led to examine the contract which was made, if any was made in this case. So far as words went, there was no agreement between them.

Nor was it a case precisely parallel to that of N. H. I. F. Company v. Richardson, 5 N. H. 294, though that case is pretty directly in point. There, all the talk that was had about a change in the terms of the contract at the end of the first year, was had at the commencement of that *476year. At the commencement of the second year the subject was not alluded to, but the services were rendered for the second year by the defendant, upon the strength of his offer to work the first year for $800, but that if he stayed the second year he must have $1000. The plaintiff accepted the first part of the proposition, to pay $800 for that year, but expressly declined to make any pledge beyond that year. The defendant worked two years, and claimed $1000 for the second year. But the court held that as there was no contract only for one year, and the services continued without any new contract, the law implied that the parties understood that the old contract continued, as no attempt was made to make any new one.

Here there was an attempt on the part of the plaintiffs to make a new contract at the commencement of the year 1870. New terms and conditions were proposed, but they were not agreed to by the defendant. The plaintiffs .demanded $12 as pay for the water that should run through the gauges for the year to come. The defendant utterly refused to pay that sum, but offered to pay the same rate as before, which the company refused to receive. Here was no new contract, then, made in words, though it must have been apparent to both parties that the old contract was at an end. The plaintiffs had terminated the old contract, and given notice to that effect to the defendant. The defendant had refused to make any new contract, but would pay the same as before, and nothing beyond that. So far, then, there is no contract. But let us look at the acts of these parties — “ acts” which “ speak plainer than words.” The defendant had said, I will pay you $10, and no more, for the year; at that price you may let the water run, and I will pay for it. Otherwise, I do not want it, and will not pay for it. The plaintiffs say, We will not take your $10 ; we must have $12, or we will not supply you. They separate ; but the plaintiffs, having the control of the water, and the power to let it run where they choose and to stop it when they choose, for non-compliance with their terms, do not cut off the defendant’s supply of water, but let it run on through that year and through the next, with nothing more said about it.

Their conduct can receive but one interpretation. Having received the defendant’s offer, although at first they refused to accept it, yet by their acts they have accepted it. They have supplied the defendant with water for the year, when they had it in their power to do so or not, after they had received his most favorable terms.

The case would stand, as we conceive, like this: A employs B to work for him for one year for $100. At the end of the year B notifies A that he shall not work any longer at that price, but that he will stay the second year for $120. A says he will not pay more than $100 for the second year; that he will pay that sum, and no more; and that B may remain and work for $100 or not, just as he pleases ; he will pay no more. Nothing more is said between them, and B goes on and works the second year as before. We think there could be no trouble in giving construction to that contract. Though B had refused to work longer at the same rate, still, when he found that the only alter*477native was to remain at the same rate, or not to remain at all, and he finally remains and works, the inference is irresistible that, whatever he may have said, he finally concluded to remain and work upon the terms offered him; and he certainly could recover nothing more.

In the case before us, the furnishing the water to the defendant, or the cutting off his supply, was a matter entirely in the hands and power of the plaintiffs, just as much as the performing of the service was entirely at the discretion of B, in the case supposed. After the plaintiff company had failed to make the contract which they desired to make, there were only two things they could properly do : one was, to shut off the water that ran to the defendant’s premises; the other was, to let him have the water upon his terms, and according to his offer. The result shows which alternative the plaintiffs adopted. Their ££ acts speak plainer than their words.” There must be

Judgment for the defendant.

Doe, J. Whether the inference, that might be drawn from the plaintiffs’ allowing the water to go, that they understood the price was $10, would be a conclusion of fact not reported by the referee ; whether the inference might be drawn, from the defendant’s allowing the water to come, and using it, that he understood the price was $12, (Fogg v. Portsmouth Atheneum, 44 N. H. 115); and whether the report should be recommitted for the referee to draw the right inference of fact from the acts of both parties, or, failing to find a price, fixed by a mutual understanding, actually existing in the minds of the parties, or existing in contemplation of law by force of an estoppel, to find what the water was worth, and what the plaintiffs reasonably deserved to have, quc&re.