With the conclusion reached by Mr. Justice Stone upon the motion to dismiss the appeal, I cannot agree. Respondents have contended that appellant, having accepted the benefits of the judgment, cannot now appeal from its nonbeneficial aspects. In support of this rule, courts have said that it imposes upon litigants a requirement of consistency which is not satisfied where a party accepts benefits from a judgment with one hand and attacks it with the other. Harte v. Castetter, 38 Neb. 571,57 N.W. 381; McGrew v. Grayston, 144 Ind. 165, 41 N.E. 1027; Webster-Glover Lbr. Mfg. Co. v. St. Croix County,71 Wis. 317, 36 N.W. 864; McKain v. Mullen, 65 W. Va. 558,64 S.E. 829, 29 L.R.A.(N.S.) 1. Other reasons such as waiver or estoppel are advanced in support of this result, but all rationales are but particularized instances of the policy which prohibits one from accepting benefits of a judgment to which he may not be entitled while protesting to a higher court that he did not get enough. Portland Constr. Co. v. O'Neil, 24 Or. 54,32 P. 764; Coston v. Lee Wilson Co. 109 Ark. 548,160 S.W. 857; Tyler v. Shea, 4 N.D. 377, 61 N.W. 468, 50 A.S.R. 660; Holt v. Rees, 46 Ill. 181; Graham v. Sapery, 19 Misc. 690,44 N Y S. 1109.
In light of this policy, the exceptions to the rule assume proper perspective. Under the one exception, appeal is allowed notwithstanding acceptance of benefits where appellant's right thereto cannot be challenged, modified, or affected by the decision on appeal. Embry v. Palmer, 107 U.S. 3, 2 S. Ct. 25,27 L. ed. 346; Ballinger v. Connecticut Mut. L. Ins. Co.118 Iowa, 23, 91 N.W. 767; Jackson v. City of Brockton,182 Mass. 26, 64 N.E. 418, 94 A.S.R. 635; Mellen v. Mellen, 137 N.Y. 606,33 N.E. 545. Under the other exception, appeal is allowed where the claim on which benefits have been accepted is severable from, unrelated to, and not mutually dependent upon the claim for which reversal is sought. Fiedler v. Howard,99 Wis. 388, 75 N.W. 163, 67 A.S.R. 865; Thwing v. McDonald,134 Minn. 148, 156 N.W. 780, *Page 605 158 N.W. 820,159 N.W. 564, Ann. Cas. 1918E, 420; Gilfillan v. McKee, 159 U.S. 303, 16 S. Ct. 6, 40 L. ed. 161; Worthington v. Beeman (7 Cir.) 91 F. 232; Woeltz v. Woeltz, 93 Tex. 548,57 S.W. 35.
There are contentions here that the facts remove the case from the general rule. It is said that the claims on which appellant was successful below are separable from those for which reversal is sought. Therefore, the rule as to consistency is said to be satisfied because appellant's right to the benefits already received cannot be disturbed here. However, in my opinion, the facts do not admit of this disposition.
The contract here determined the purchase price of appellant's shares by reference to their book value on December 31, 1934. That contract also permitted each party to verify the correctness of this figure. Claiming to have discovered errors adversely affecting the book value, appellant brought this action for accounting and money. To establish this claim, it was necessary for appellant to demonstrate that the errors disclosed by the new audit had a depressive effect upon the agreed book value and had not been compromised in the contract. Unless an adverse effect upon the agreed book value was shown, entries, even though erroneous, had no bearing in the lawsuit. As to some items it was found that appellant had been prejudiced in the computation of the agreed book value; as to others, either the evidence failed to support, or the court found that they had been compromised in the contract. While it is true that there is apparent separateness between some of the items, yet none have any independent legal significance apart from their relation to the agreed book value. Thus each item should not be regarded as a separate claim or cause of action. There is only one claim of which they form a part. Under the decisions, these items are not within the exception. McMullen v. Fort Pierce F. Constr. Co. 108 Fla. 492, 146 So. 567; In re Black's Estate, 32 Mont. 51, 79 P. 554; Hyland v. Hogue,131 Kan. 512, 292 P. 750; Larson v. Vinje (Iowa) 109 N.W. 786; Mastin v. May, 130 Minn. 281, 153 N.W. 756; Allen *Page 606 v. Bank of Angelica (2 Cir.) 34 F.2d 658; Webster-Glover Lbr. Mfg. Co. v. St. Croix County, 71 Wis. 317, 36 N.W. 864.
To a lesser degree than contended, appellant was successful in establishing that as permitted by the contract the agreed book value should be favorably modified. Save as to the item for $60, respondents never conceded the propriety of any modification. It was only through the judgment that appellant's claim was established in law. At this point a choice was open to appellant: either to appeal or to recognize the judgment as an adjudication of rights. Wright, Barrett Stilwell Co. v. Robinson, 79 Minn. 272, 82 N.W. 632. It cannot be denied that by accepting the money which respondents deposited in escrow appellant recognized the validity of the judgment. Proper procedure would have been to leave the money undisturbed while taking an appeal. Withdrawal was certainly not necessary.Cf. Spratt v. Spratt, 140 Minn. 510, 166 N.W. 769,167 N.W. 735. Thus that acceptance of benefits by appellant should bar this appeal.
Appellant's attempted reservation of the right to appeal while accepting the benefits of the judgment is not effective here since the claims are not divisible. Coston v. Lee Wilson Co. 109 Ark. 548, 160 S.W. 857; Hyland v. Hogue,supra; Flowers v. Hughes, 46 La. Ann. 436, 15 So. 14; Raines v. Dunson, 143 La. 321, 78 So. 574; cf. Haynes v. Halverton,51 Tex. Civ. App. 228, 111 S.W. 166; City of Seattle v. Liberman,9 Wash. 276, 37 P. 433. The motion to dismiss this appeal should have been granted.