claim was admitted by the defendant, but the entire claim was denied and contested. It is an established rule of procedure that a party to an action cannot receive a benefit under a judgment, and then appeal from it, when the effect of his appeal may be to annul the judgment, unless his right to the benefit is absolute, and cannot possibly be affected by a reversal of the judgment. Easton v. Lockhart (N. D.), 89 N. W. 75. The earlier case of Tyler v. Shea, 4 N. D. 377 (61 N. W. 468, 50 Am. St. Rep. 660), is referred to by Chief Justice Wallin in the above case.

As Tyler v. Shea is cited by plaintiff's attorney, the following excerpt therefrom is quoted. After stating the rule as above, and citing many authorities in support thereof, the court says:

"We must be careful not to ignore an important qualification of the general doctrine. Where the reversal of the judgment cannot possibly affect the appellant's right to the benefit he has secured under the judgment, then an appeal may be taken, and will be sustained, despite the fact that the appellant has sought and secured such benefit. To illustrate this doctrine, we may instance the case of an action to recover $1,000, in which the only defense is a counterclaim for $500. It is obvious that $500 of plaintiff's claim is admitted. If the defendant succeeds in establishing his counterclaim, thus reducing the plaintiff's recovery to $500, the plaintiff may collect the $500 awarded to him by the judgment, and still appeal from such judgment to secure a reversal, to the end that he may defeat the counterclaim and recover judgment for his entire demand on a new trial. The $500 he is entitled to absolutely. The reversal of the judgment and the second trial of the case cannot impair his right to it. Accepting this sum is therefore not inconsistent with his attempt to reverse the judgment, that he may on a new trial recover more. can never recover less. It is the possibility that his appeal may lead to a result showing that he was not entitled to what he has received under the judgment appealed from, that defeats his right to appeal. Where there is no such possibility, the right to appeal is unimpaired by the acceptance of benefits under the judgment appealed from. The following decisions enforce this doctrine: Reynes v. Dumont, 130 U. S. 354-394 (9 Sup. Ct. 486); Embry v.

He

Palmer, 107 U. S. 3 (2 Sup. Ct. 25); Higbie v. Westlake, 14 N. Y. 281; Mellen v. Mellen, 137 N. Y. 606 (33 N. E. 545); Cocks v. Haviland, 55 Hun, 605 (7 N. Y. Supp. 870); Portland Construction Co. v. O'Neil, 24 Or. 54 (32 Pac. 764); Morriss v. Garland, 78 Va. 215; Upton Manfg. Co. v. Huiske, 69 Iowa, 557 (29 N. W. 621); Dudman v. Earl, 49 Iowa, 37. The case of U. S. v. Dashiel, 3 Wall. 688, belongs to this class. The reasoning of the opinion delivered in denying the motion to dismiss is unsatisfactory in its statement of the grounds on which the decision rests, but, when we turn to the opinion of the court on the merits ([U. S. v. Dashiel] 4 Wall. 182), we discover that the defendant did not dispute his liability for the amount for which judgment was rendered against him, but only with respect to the balance of the claim; his defense as to such balance being that the money was stolen from him, and that, therefore, he was not accountable for it to the government, whose money it was, in his custody as paymaster in the army of the United States. The judgment was rendered for this amount not in dispute, and a portion of it was collected before the writ of error was sued out. The motion to dismiss was properly denied, because the reversal of the case could not affect plaintiff's right to what it had collected. Defendant conceded that so much was due. Again, cases will arise they have arisen-in which the appellant has the right to ask for a more favorable judgment in the appellate court without having the case sent back for a new trial, on which, of course, the whole matter would be open again for investigation, which might result in a judgment not so favorable to plaintiff, or even one that would be adverse to him. In the class of cases in which a new trial of the whole case may result from the appeal, the element does not exist that exists in the one we have already alluded to. No portion of plaintiff's claim is admitted. Everything is in controversy. Under such a state of the pleadings, it is obvious that a reversal of the judgment and a new trial may result in a decision showing that the plaintiff was not entitled to what the former judgment gave him. In such a case the plaintiff cannot accept what that judgment gives him, and then by appeal pursue a course which may overthrow the right of which he has availed himself. But if it is possible for him to obtain a more favorable judgment in the appellate court without the risk of a less favorable judgment from a

trial of the whole case there or in the lower court, then the acceptance of what the judgment gives him is not inconsistent with an appeal for the sole purpose of securing, without retrial of the whole case, a decision more advantageous to himself. There are several cases in which this doctrine has been enforced, and others in which it has been recognized. Monnet v. Merz, 60 N. Y. Super. Ct. 256 (17 N. Y. Supp. 380), affirmed in 131 N. Y. 646 (30 N. E. 866); Clowes v. Dickenson, 8 Cow. (N. Y.) 328, as explained in Knapp v. Brown, 45 N. Y. 208; Tarleton v. Goldthwaite, 23 Ala. 346 (58 Am. Dec. 296); Inverarity v. Stowell, 10 Or. 261."

The case of Raborn v. Woods, 33 Ind. App. 171 (70 N. E. 399), is in point. It was ejectment for 80 acres of land. The judgment was in favor of the plaintiff for the east one-half of the 80, and in favor of the defendants for the west cne-half. The plaintiff and appellant took possession of the 40 acres awarded to him and exercised all acts of ownership over the same. The court said:

"It appears in this case that appellant has elected to receive the benefit of what he is alleging is an erroneous judgment and decree of the court. He has taken possession of the land awarded to him by the judgment, and is receiving the rents and profits therefrom, and is here seeking a reversal of the decree as to the other part of the land, which by the judgment of the court, was given to appellees. This he cannot do. A reversal of the judgment under the assignment of error could only result in a new trial of the whole case. The parties to the action could not be placed in the same position that they occupied at the time the action was commenced, because it is alleged, and is not denied, that appellant accepted the benefit of the judgment and decree, and is in possession of a part of the real estate. * * We think the case falls fully within the rule that a party cannot accept any benefit of an adjudication and afterwards allege it to be erroneous.'

*

See, also, Sterne v. Vert, 108 Ind. 232 (9 N. E. 127); Moore v. Williams, 132 Ill. 594 (24 N. E. 617); Smith v. Coleman, 77 Wis. 343 (46 N. W. 664); Laird v. Giffin, 84 Wis. 286 (54 N. W. 584); Rariden v. Rari

164 MICH.-6.

den, 33 Ind. App. 284 (70 N. E. 398, 104 Am. St. Rep. 252); Chase v. Driver, 92 Fed. 780, 34 C. C. A. 668. Many more cases might be cited to the same effect. Counsel for the plaintiff seeks to distinguish some of these cases from the instant case by reason of the statute, but we are unable to distinguish them.

In Talbot v. Mason, 125 Fed. 101, 60 C. C. A. 145, it was held that a claimant who, on the entry of an order denying his petition for an allowance from a fund in court on the ground that he had no legal or equitable claim thereon, accepted an offer made in open court by counsel for opposing interests to consent to an allowance of a smaller sum, which allowance was accordingly made, based expressly on the consent, and who accepted payment thereunder, was thereby equitably estopped to prosecute an appeal from the order disallowing his claim. We might cite many cases holding that one who accepts the benefits of a decree or judgment, is thereby estopped from reviewing it, or from escaping from its burdens.

It will be noted that this writ of error seeks a reversal of the entire judgment. Should the case be reversed, the judgment below would no longer exist for any purpose.

While there is some disagreement as to the conduct of the plaintiff in seeking the benefits of its judgment, the essential facts are not disputed, that the plaintiff sought the benefit of its judgment by asserting its right under the writ of possession and execution, and is thereby, we think, precluded from prosecuting its appeal.

It is equally undisputed that the defendant at first declined to submit to the demands of the plaintiff, and it was only when threatened with service of process, that the tracks were moved. The motion to dismiss the writ of error was made within 10 days after the tracks were moved. We do not think that defendant was guilty of any laches here. Nor do we find that defendant by its conduct misled the plaintiff. The plaintiff from the first persisted in its course. The parties were adversaries in a

lawsuit, and dealt with each other at arm's length. At most, the defendant stood upon its rights.

We think that the motion to dismiss the writ of error should be granted. Motion granted.

BIRD, C. J., and OSTRANDER, HOOKER, and MOORE, JJ., concurred.

A. M. CAMPAU REALTY CO. v. LENHARDT.

1. CONTRACTS-SIDEWALKS-GUARANTY-CONSIDERATION. Where defendants, while constructing sidewalks for plaintiff, were notified that the work was being improperly done, and on presenting a bill for same were refused payment, and later secured acceptance of the work and payment by giving a written guaranty; held that there was a good consideration for the guaranty.

2. TRIAL-EVIDENCE-STATEMENT OF ACCOUNT.

In an action to recover the cost of repairing defective sidewalks, on a written guaranty, the statement of an account of the cost of reconstructing various pieces of walk was not received in evidence, where it was merely shown to a witness, who was asked to state the various items appearing therein having reference to the particular walk, and witness answered, "the item, $171.18, being the expense of rebuilding the damaged walk that was not good."

3. DAMAGES-SIDEWALKS-RECONSTRUCTION-LACHES-DEFENSES. In an action to recover the cost of repairing defective sidewalks, on a written guaranty, defendants will not be heard to object that plaintiff was not entitled to recover the full cost of reconstruction, after having had the use of them for nearly the period covered by the guaranty, and that plaintiff stood by and permitted the walks to disintegrate without taking action to repair them, where the evidence was undisputed that soon after completion the walks began to dis