Opinion
Argued January 10, 1967
Dismissed March 15, 1967 Petition for rehearing denied April 11, 1967
Appeal from Circuit Court, Multnomah County.
HERBERT M. SCHWAB, Judge.
Appeal dismissed.
IN BANC
Paul R. Meyer, Portland, argued the cause for appellant. With him on the briefs were Leo Levenson and Kobin Meyer, Portland.
George M. Joseph, Portland, argued the cause for respondent. On the brief were Jack H. Dunn, Morton H. Zalutsky and Morrison Bailey, Portland.
Before PERRY, Chief Justice, and McALLISTER, SLOAN, O'CONNELL, GOODWIN, DENECKE and LUSK, Justices.
This is a suit by plaintiff corporation to require defendant, a promoter of the corporation, (1) to account for corporate profits retained by defendant, and (2) to require defendant to specifically perform a stock subscription agreement or, in the alternative, to cancel defendant's stock. The trial court granted the requested relief for an accounting and ordered defendant to specifically perform his stock subscription agreement.
Plaintiff contends that the trial court erred in failing to cancel defendant's stock. It is contended that the stock subscription agreement is invalid because it consists of an agreement to issue stock for services which were not to be rendered until a future time.
Defendant contends that plaintiff is precluded from raising this question on appeal because all the relief which plaintiff sought was granted to it in the suit below and because plaintiff accepted the benefit of the trial court's decree.
We agree with defendant that plaintiff is not at liberty to allege the invalidity of the subscription agreement in this appeal. Plaintiff asked for alternative relief; either specific performance of the subscription agreement or cancellation of defendant's stock. The trial court having granted one of the alternatives, plaintiff has received all that it has requested and all that to which it is entitled.
Where the plaintiff seeks alternative remedies which are inconsistent with one another, and the court grants one of the requested remedies, the plaintiff is precluded from recovery under the other remedy, and no appeal will lie from the trial court's refusal to grant the requested relief. Under such circumstances the plaintiff is essentially in the same position as if he had appealed from a decree entered by consent.
"* * * If two inconsistent prayers for relief be made, the court can properly grant but one; and if it grants one, the plaintiffs can make no valid complaint because it denied the other." Dow v. McVey, 174 Iowa 553, 557, 156 N.W. 706, 707 (1916).
See also, Fugate v. Walker, 204 Ky. 767, 265 S.W. 331 (1924); Dillon v. Wentz, 227 N C 117, 41 S.E.2d 202 (1947); Harris v. Christianson-Keithley Co., 303 S.W.2d 422 (Tex Civ App 1957); Texas Portland Cement Lime Co. v. Lee, 98 Tex 236, 82 S.W. 1025 (1904); Marwalt Realty Co. v. Greene, 224 Wis. 1, 271 N.W. 648 (1937).
Cf., Boyer v. Burton, 79 Or. 662, 149 P. 83, 156 P. 281 (1916). See also, Steenson v. Robinson, 236 Or. 414, 385 P.2d 738, 389 P.2d 27 (1964); Schoren v. Schoren, 110 Or. 272, 214 P. 885, 222 P. 1096 (1924).
Plaintiff has waived its right to appeal not only because it has received the relief it requested, but also because it has accepted the benefits of the decree entered in its favor.
"* * * [A] litigant cannot accept the benefits of an adjudication and afterward appeal therefrom." Portland v. Schmid, 82 Or. 465, 467, 161 P. 560 (1916).
See also, Bd. of Higher Education v. United Presbyterian Church, 82 Or Adv Sh 625, 630, 413 P.2d 428 (1966); Pacific General Contractors v. Slate Const. Co., 196 Or. 608, 611-12, 251 P.2d 454 (1952); Moore v. Floyd, 4 Or. 260, 261 (1872).
The appeal is dismissed.