Eggleston, J.,
delivered the opinion of the court.
For the third time we are here called upon to decide important rights of certain persons holding preferred stock in the United States Distributing Corporation, a Virginia corporation, who dissented from the merger of that corporation with The Pittston Company, a Delaware corporation, under the name of the latter. The merger became effective on December 31, 1942.
On June 2, 1943, Maurice D. Adams, E. Frank O’Hara, and certain other dissenters, whom we shall refer to as the “Adams-O’Hara group,” having notified The Pittston Company, the merged corporation, that they elected to dissent from the merger, filed in the Law and Equity Court of the city of Richmond a bill in equity under the style of Adams v. United States Distributing Corp., for the determination and recovery of the fair cash value of their stock.
On the first appeal, taken from a decree entered in that cause, we held that the appraisal proceeding under Code, section 3822, as amended, was the exclusive remedy which must be pursued by all of the dissenting stockholders in order to have their stock valued and paid for, and that an independent suit in equity could not be maintained for that purpose. Adams v. United States Distributing Corp., 184 Va. 134, 34 S. E. (2d) 244, 162 A. L. R. 1227 (cert. denied, 327 U. S. 788, 66 S. Ct. 807, 90 L. ed. 1014).
In the meantime The Pittston Company had instituted in the Chancery Court of the city of Richmond, hereinafter referred to as the lower court, a proceeding under the statute and under the style of The Pittston Co. v. Ungerleider & Co., et al., for an appraisal of the fair cash value of the stock of the dissenters. All of the dissenters, except the members of the Adams-O’Hara group, were made parties defendant to this proceeding. This statutory proceeding culminated in a decree entered on December 6, 1944, fixing the fair [891]*891cash value of the stock of those defendant dissenters at $55 per share. For convenience we shall refer to that as the first appraisal. By the further terms of this decree The Pittston Company was directed to pay to those defendant dissenters such ascertained cash value, plus interest from the effective date of the merger to October 22, 1944, the latter date having been fixed by stipulation of counsel.
After our decision on the first appeal the lower court, on the motion of .The Pittston Company and over the objection of members of the Adams-O’Hara group, entered a decree on April 16, 1946, holding that the members of this group should receive for their stock the same value which had been fixed in the first appraisal, namely, $55 per share. In this latter decree interest was allowed to the members of the Adams-O’Hara group on the value of their stock from the effective date of the merger until paid. The Pitts-ton Company was unsuccessful in its contention that such interest should cease on October 22, 1944, as had been decreed in the case of the other dissenters.
Some of the members of the Adams-O’Hara group abided by the terms of this decree of April 16, 1946, surrendered their certificates and accepted the sum of $55 per share with interest. However, nine members of the group appealed and at their instance we reversed and annulled the decree, on the ground that inasmuch as these dissenters were not parties to the first appraisal proceeding and had taken no part therein, the decree of December 6, 1944, fixing the value of the other dissenters’ stock at $55 per share, was not res judicata as to or binding on the members of the Adams-O’Hara group. Hence, we held, the lower court erred in imposing upon this group of dissenters, by the decree of April 16, 1946, the same valuation of the stock which had been fixed for the other dissenters in the decree of December 6, 1944. The dissenting members of the Adams-O’Hara group were, we said, entitled to a new and independent appraisal, and the cause was remanded for that purpose. O’Hara v. The Pittston Co., 186 Va. 325, 42 S. E. (2d) 269, 174 A. L. R. 945.
[892]*892In their petition for the appointment of new and independent appraisers the members of the Adams-O’Hara group demanded interest on the ascertained fair value of their stock from the effective date of the merger until they were paid.
The Pittston Company, in its answer to this petition, again asserted that these dissenters were not entitled to interest beyond October 22, 1944, that being the date on which interest had stopped running in the case of the other dissenters, under the terms of the decree of December 6, 1944.
New appraisers were appointed, and on April 11, 1949, they filed their report fixing the fair cash value of the stock held by the nine members of the Adams-O’Hara group at $57.75 per share as of the effective date of the merger.
Both The Pittston Company and the dissenters filed written exceptions to this report. However, The Pittston Company withdrew its exceptions and by leave of court and over the objection of the dissenters filed an amended answer, in which it took the position that these dissenters were “entitled to no interest whatsoever” on the ascertained fair cash value of their stock.
On November 17, 1949, the lower court entered a decree confirming the appraisers’ report as to the fair cash value of the stock of the members of the Adams-O’Hara group. Over the objection of The Pittston Company it decreed that the dissenters were entitled to interest at the rate of six per cent, per annum upon such ascertained value from the effective date of the merger until paid, and entered judgment in favor of each of the nine dissenters against The Pittston Company accordingly.1
From this decree The Pittston Company has appealed. It does not question the adjudication of the fair cash value [893]*893of the dissenters’ stock. Its sole contention is that the dissenters are entitled to interest, not from the effective date of the merger, but from November 17, 1949, the date of the entry of the decree fixing the value of their stock.
Whether the appellee dissenters are entitled to interest on the fair cash value of their stock, as they claim and as the lower court held, from the effective date of the merger, depends upon a proper interpretation of the statute.2
Section 3822-a, paragraph (a), provides that any stockholder of a corporation who has not given his assent to the lawful merger of his corporation with another, may by following the prescribed procedure, receive from the consolidated or merged corporation “the fair cash value of his stock as of the day before the vote for the agreement of consolidation or merger of his corporation was so cast.” (Code, sec. 13-47.)
Paragraph (b) of the section provides that if the dissenting stockholder and the merged or consolidated corporation are unable to agree upon “the fair cash value of his stock, as of the day” aforesaid, either he or the merged corporation, upon reasonable notice to the other, may apply to a specified court, or to the judge thereof in vacation, to have “the fair cash value of his stock, as of the date aforesaid,” determined by three disinterested appraisers appointed by the court. (Code, sec. 13-48.)
[894]*894Paragraph (c) provides that the appraisers so appointed, after investigation, shall report to the’ court, or the judge thereof in vacation, as promptly as possible, “the fair cash value of the stock of the dissenting stockholder as of the day” aforesaid. (Code, sec. 13-49.)
Paragraph (d) provides that if such stockholder or the consolidated or merged corporation be dissatisfied with “the fair cash value as determined by the appraisers,” he or it may apply to the court, or to the judge thereof in vacation, to set aside the finding of the appraisers. If the court or judge be of opinion that the “valuation is just,” it or he shah deny the application and “shall confirm” “the report of the appraisers” “and the amount thereof.” In case of such confirmation the amount fixed by the appraisers “shall immediately become and be a final judgment of the court against the consolidated or merged corporation and may be collected as other judgments of a court of competent jurisdiction are by law collectible.” (Code, sec. 13-50.)
If the court or judge be of opinion that the valuation is not just, the report of the appraisers shall be set aside and the court or judge “shall proceed to ascertain the fair cash value of the stock of such stockholder, as of the day aforesaid, and shall enter judgment against the consolidated or merged- corporation accordingly, which judgment may be collected as other judgments of a court of competent jurisdiction are collectible.” (Code, sec. 13-50.)
'Paragraph (e) of the section provides that, “Upon payment or tender of payment by the consolidated or merged corporation of the value of the stock so ascertained, the dissenting stockholder shall deliver up his certificate of stock * * * and shall mark the judgment satisfied.” If the dissenting stockholder refuses to deliver the stock and mark the judgment satisfied upon such tender, then the corporation may deposit to the credit of the court in which the proceeding is pending “the value of the stock so ascertained and determined,” and the court or judge “shall enter an order reciting the deposit and declaring the judgment satisfied.” (Code, sec. 13-51.)
[895]*895This paragraph further provides that, “Thereafter the rights of the stockholder under his stock in the consolidating or merging corporation shall cease and determine and his sole right shall be to receive the cash so deposited upon surrender” .of his certificate or certificates of stock.
From this analysis it is plain that the statute makes no provision for the allowance of interest to the dissenting stockholder on the ascertained fair cash value of his stock either by the appraisers or by the court in its entry of judgment. Whether the court adopts the valuation of the appraisers, or itself fixes such valuation, it is authorized to enter judgment only for the ascertained fair cash value as of the specified time.
When the consolidated corporation pays or tenders to the stockholder “the value of the stock so ascertained,” it is entitled to receive the stock and the stockholder is required to deliver it to the corporation.
Similar statutes are found in other States, and with the two exceptions3 to which we shall later refer, the courts have uniformly held that in such a statutory appraisal proceeding the dissenting stockholder is not entitled to receive from the merged corporation interest on the ascertained fair cash value of his stock from the effective date of the merger. See Meade v. Pacific Gamble Robinson Co. (Del.), 58 A. (2d) 415 (affirming 51 A. (2d) 313); In re Janssen Dairy Corp., 2 N. J. Super. 580, 64 A. (2d) 652; American General Corp. v. Camp, 171 Md. 629, 190 A. 225; In re Erlanger, 237 N. Y. 159, 142 N. E. 571.4
These decisions are grounded on the following principles with which we are in accord:
(1) The proceeding is statutory in nature and the court sits as a special tribunal with the limited powers
[896]*896granted to it by the statute. Where the statute does not provide for interest the court has no discretion to award interest. Meade v. Pacific Gamble Robinson Co., supra (58 A. (2d), at page 418); In re Janssen Dairy Corp., supra (64 A. (2d), at page 654).
(2) The act of a corporation in merging with another is not a tort or a legal wrong which violates the rights of a dissenter and entitles him to interest within the discretion of the court, or under the interest statute. (Code, sec. 8-223.) The merger is effected under full authority of the statute which is an essential part of the contract between the corporation and its stockholders.5 Meade v. Pacific Gamble Robinson Co., supra (58 A. (2d), at pages 417, 418); In re Janssen Dairy Corp., supra (64 A. (2d), at page 654).
(3) The merger of a corporation in which the dissenting stockholder owns stock with another does not constitute a “taking” of the stock of the dissenter in the sense of a condemnation proceeding. In a merger there is no taking of the dissenter’s stock without his consent. Under the terms of the statute, which is a part of his contract, he has the election to retain his stock in the consolidated corporation or to accept the fair cash value thereof. There is no compulsion on him to choose one course rather than the other. If he elects not to remain with the merged corporation, he surrenders his stock in return for the fair cash value thereof pursuant to the terms of his contract with the corporation. Meade v. Pacific Gamble Robinson Co., supra (51 A. (2d), at pages 317, 318); In re Erlanger, supra (142 N. E., at page 573).
(4) In any event, interest cannot be awarded until the stockholder’s claim against the corporation becomes liquidated upon the ascertainment of the fair cash value of his stock. American General Corp. v. Camp, supra (190 A., at pages 230-231).
[897]*897The principle that the provisions of the merger statute are a part of the contract between the corporation and the dissenting stockholder disposes of the contention of the appellee dissenters that they are entitled to interest by virtue of the interest statute. (Code, sec. 8-223.) This statute provides that, “In any suit in equity, or in an action or motion founded on contract, when no jury is impaneled, decree or judgment may be rendered for interest on the principal sum recovered, until such decree or judgment be paid; * * This statute, of course, does not contemplate or permit the allowance of interest in the decree or judgment contrary to the terms of the contract between the parties.
In Skipwith v. Federal Water, etc., Corp., 185 Misc. 248, 56 N. Y. S. (2d) 804, a lower New York court, interpreting the Delaware merger statute, held that interest should be allowed as a matter of “simple justice.” However, the highest court of Delaware, in the Meade Case, supra, interpreting its own statute, expressly rejected the holding and reasoning in the Skipwith Case. (See 58 A. (2d), at page 418.) The holding in the Skipwith Case was likewise rejected in In re Janssen Dairy Corp., supra (64 A. (2d), at pages 655, 656).
In the recent case of Richmond v. Henrico County, 185 Va. 176, 37 S. E. (2d) 873, we dealt with a question which is strikingly similar to that- now before us. That case involved the proper interpretation of section 5222k of Michie’s Code of 1942 (Acts 1924, p. 713), which in substance provided that a city annexing a subdivision should pay to the owners of such subdivision the “fair value,” as of the date of annexation, of the public improvements and utilities constructed by the owners in such subdivision. Provision was made for the appointment of appraisers, in event of disagreement, to ascertain and report to the court such “fair value.”
The city and the owners being unable to agree, appraisers were appointed and instructed to ascertain and report the “fair value” of the improvements as of the date of annexa[898]*898tion. The trial court confirmed some of the appraisers’ findings, but set aside others and made new findings of “fair value.” It also awarded interest on the ascertained “fair value” of such improvements from the effective date of the annexation. In reversing that judgment with respect to the allowance of interest, we there said what is pertinent here:
“* * # The statute, which is alone the source of any recovery, does not provide for the payment of interest and consequently the appraisers’ awards do not bear interest, certainly until the awards become a finality which, in the absence of adjustment, cannot be until the matter has run the gamut of the courts. Until such event, the claim is unliquidated. There would be no sum certain upon which interest could be computed.
“It was said in the case of Stearns v. Mason, 24 Gratt. (65 Va.) 484, 494: ‘This court has repeatedly held that when accounts were unliquidated and disputed between the parties, interest ought not to be allowed.’
“After citing a number of cases in support of the above statement, the court said further: ‘These cases show that the court ought not to allow interest when the claim, though just, is doubtful, or where the amount is unliquidated and uncertain.’
“Section 6259 of the Code of Virginia, known as the interest statute, has no application to this case.
“This is not an action on contract or for tort, nor is it a suit in equity, all of which processes are subjects of that section.
“This is a proceeding by way of petition, for the appointment of appraisers to do a specific thing, namely, to determine the fair value of certain utilities as of a certain time. It is purely statutory and the end to be attained is rather ideal until it becomes actual through the processes of the statute. Nothing is allowable outside of the statute. Fair value, in our notion of the statutory intendment, is, when ascertained, a sum certain, definite and fixed. If that sum is augmented by the addition of interest or anything else it is more than fair value and so more than the statute [899]*899allows.” (185 Va., at pages 199, 200, 37 S. E. (2d), at pages 884, 885.)
While the statute involved in the Richmond-Henrico Case was not a part of the contract between the parties, as is the situation in the case now before us, the cases are identical in that the language of each statute negatives the allowance of interest on the “fair value” in one case, or the “fair cash value” in the other, prior to the date of the ascertainment of such value.
According to the briefs now before us the lower court was of opinion that under the principles announced in Tobacco Products Corp. v. Plummer, decided by Judge Moncure in the Chancery Court of the city of Richmond in 1933 (opinion not reported), and in which we refused an appeal without opinion on January 22, 1934 (161 Va. xvii), it was bound to allow interest to the appellee dissenters on the fair cash value of their stock from the effective date of the merger.
We have re-examined the record and opinion in the Tobacco Products Case and agree that what was said in that opinion supports the view of the lower court with respect to the allowance of interest in the present case. But we are of opinion that the present case should not be disposed of upon the holding in that case.
The Tobacco Products Case did not involve the merger of corporations under Code, section 3822-a, or its predecessor, section 3822. It involved the rights of stockholders in one corporation who did not assent to the sale of its entire assets to another corporation. That situation was governed by the terms of Michie’s Code of 1930, section 3820-a. (Code of 1950, sections 13-83 to 13-86.) The latter section provided that in case of such sale a dissenting stockholder should have the same right as a stockholder who dissented from a corporate merger, and that the same procedure should be followed to ascertain the fair cash value of the dissenter’s stock “as now or may be hereafter provided by statute in case of such stockholder of a merged or consolidated cor[900]*900poration and/or as now exists under the general law; '* * * .” (Italics supplied.)
We held in Craddock-Terry Co. v. Powell, 181 Va. 417, 443, 25 S. E. (2d) 363, 374, that the italicized words evinced a legislative intent that the statutory remedy afforded to a stockholder who dissented from such sale was not to be exclusive, and that such dissenter might pursue his equitable remedy as well. See also, Adams v. United States Distributing Corp., supra (184 Va., at page 147, 34 S. E. (2d), at page 250).
According to the opinion in the Tobacco Products Case, the chancellor thought that the merger statute likewise did not provide the exclusive remedy for dissenting stockholders. Accordingly, he reasoned that the rights in a merger case, as well as in a sale of assets case, were the same and should be decided on equitable principles which permitted the allowance of interest, as a matter of “simple justice,” on the ascertained fair cash value of the dissenter’s stock from the date of the sale or the effective date of the merger.
But, as we pointed out in Adams v. United States Distributing Corp., supra (184 Va., at page 147, 34 S. E. (2d), at page 250), the rights of the dissenting stockholders in the two cases are not identical. In the case of a merger there is no preservation to the dissenter of his “original equitable remedy,” but his rights are governed entirely by the statute.
In so far as what was said in the Tobacco Products Case may conflict with our later holding in Richmond v. Henrico County, supra, and with the principles enunciated in the case now before us, it is hereby disapproved.6
This court is not concerned with whether a dissenting stockholder, as a matter of “simple justice” or under equitable principles, is entitled to interest on the fair cash value of his stock from the effective date of the merger. It is for the legislature and not for the courts to say upon [901]*901what terms the consolidated or merged corporation should settle its differences with a dissenting stockholder. Our function is to construe the statute as written. In discharge of that function we hold that under the statute, as we interpret it, a dissenting stockholder is not entitled to interest on the ascertained value of his stock from the effective date of the merger.
The appellee members of the Adams-O’Hara group contend that The Pittston Company is estopped under either the doctrine of res judicata or the law of the case, or under the doctrine of inconsistent position, from denying on this appeal its liability for interest on the ascertained fair cash value of their stock from the effective date of the merger. Neither of these positions, in our opinion, is sound.
With respect to the claim of res judicata or law of the case, the appellee dissenters say that the lower court, in its decrees of December 6, 1944, and April 16, 1946, adjudicated that The Pittston Company should pay interest on the ascertained fair cash value of the stock “of all of the dissenters,” and that that company did not appeal from such adjudication.
This argument overlooks two fundamental essentials in the application of the doctrine of res judicata: (1) It applies only to parties to the proceeding and their privies; and (2) The estoppel must be mutual. If one who asserts the estoppel was not a party to the prior proceeding and is not bound by the judgment relied on, the adverse party is likewise not bound. See Freeman on Judgments, 5th Ed., Vol. 1, section 428, p. 929 ff; Anderson v. Sisson, 170 Va. 178, 182, 196 S. E. 688, 689; Unemployment Compensation Comm. v. Harvey, 179 Va. 202, 210, 18 S. E. (2d) 390, 393.
As has already been said, on the second appeal we reversed the decree of April 16, 1946, on the ground then asserted by the Adams-O’Hara group that its effect was to bind them by the first appraisal proceeding, which culminated in the decree of December 6, 1944, to which these dissenters were not parties. Hence, we said, the latter decree was not res judicata as to or binding on these dissenters. [902]*902O’Hara v. The Pittston Co., supra. It necessarily follows that in so far as their rights are concerned, it likewise does not so operate against their adversary, The Pittston Company.
Moreover, the decree of April 16, 1946, which adjudicated that The Pittston Company must pay the appellee dissenters $55 per share for their stock with interest, and upon which they here rely, was at the instance of these dissenters “reversed and annulled,” according to the terms of our mandate. O’Hara v. The Pittston Co., supra. Having been reversed, the decree was no longer operative as res judicata or the law of the case in favor of or against any of the parties. Freeman on Judgments, 5th Ed., Vol. 2, section 720, p. 1521 ff; 50 C. J. S., Judgments, section 625, pp. 50-51; Id., section 702, pp. 157-158.
The claim of the appellee dissenters that The Pittston Company is estopped by its prior conduct to deny liability for such interest is based on these circumstances:
(1) It acquiesced in the decree of December 6, 1944, ordering the payment of interest from the effective date of the merger on the fair cash value of the stock of other dissenters. It subsequently undertook to hold the members of the Adams-O’Hara group to these terms and acquiesced in the decree of April 16, 1946, which had that effect.
Since we held on the second appeal (O’Hara v. The Pittston Co., supra) that the Adams-O’Hara dissenters were not parties to the first appraisal which culminated in the decree of December 6, 1944, allowing interest to the other dissenters, the position of The Pittston Company with respect to the entry of that decree does not work an estoppel against it in this, the second appraisal proceeding.
The doctrine of estoppel by inconsistent position does not apply to a prior proceeding in which the parties are not the same. 19 Am. Jur., Estoppel, section 73, p. 711; 31 C. J. S., Estoppel, section 117, p. 372 ff.
In its unsuccessful effort to hold the members of the Adams-O’Hara group to the terms of the decree of Decembei 6, 1944, The Pittston Company took no position with [903]*903reference to its liability for interest as such. It claimed that under our opinion on the first appeal (Adams v. United States Distributing Corp., supra), the members of the Adams-O’Hara group were entitled to receive precisely what the lower court had adjudicated that the other dissenters were entitled to receive. Identity of treatment of the Adams-O’Hara group, as measured by what had been paid to the other dissenters, precluded The Pittston Company from talcing the position that it was not bound to pay interest •to the latter group.
Indeed, the lower court announced in its opinion that the decree of April 16, 1946, holding the members of the Adams-O’Hara group to the terms of the decree of December 6, 1944, was based upon such identity of treatment. It differed from The Pittston Company’s application of the principle only to the extent that it allowed interest to the date of payment, whereas The Pittston Company had insisted that interest should stop running on October 22, 1944, as in the case of the other dissenters.
Not until after our opinion on the second appeal, in which we reversed the decree of April 16, 1946 (O’Hara v. The Pittston Co., supra), was it made clear to these litigants and the lower court that the members of the Adams-O’Hara group were not bound to receive precisely what the other dissenters had gotten as the result of the first appraisal.
(2) Next, it is said, in its original answer to the petition of the members of the Adams-O’Hara group for a new appraisal,. The Pittston Company took the position that it was liable for interest from the effective date of the merger until October 22, 1944, and not until its amended answer was filed did it take the position that it was not liable for interest prior to the date of the judgment confirming the appraisal and fixing the fair cash surrender value of the stock.
This change of position in the pleading of The Pittston Company was with respect to a question of law and was made before the appraisers’ report had been acted on. [904]*904A person who has taken an erroneous position on a question of law is ordinarily not estopped from later taking the correct position, provided his adversary has suffered no harm or prejudice by reason of the change. Spandorfer v. Cooper, 141 Va. 792, 799, 800, 126 S. E. 558; 31 C. J. S., Estoppel, section 117, pp. 372, 373, and cases there cited.
Here there is no showing that the Adams-O’Hara dissenters were in any way prejudiced by this change of position on the part of The Pittston Company in its pleading. They say in their brief that “had Pittston assumed this position before the appraisal, the Adams-O’Hara group could have urged that the appraisers’ award include interest.”
The ready answer to this contention is that under the statute and the order appointing the appraisers, they were authorized to determine “the fair cash value of the stock” as of the effective date of the merger. It was no concern of theirs nor within their province to determine whether interest should be paid on such value after that date.
(3) Finally, it is said, in its settlement with other dissenting stockholders The Pittston Company paid interest on the value of the stock from the effective date of the merger.
We know of no principle of law which holds that a party who settles with an adversary on certain terms in one proceeding is bound to settle upon the same terms with other parties in another proceeding, even though the litigation in the two instances may have arisen out of the same subject-matter.
For these reasons the decree appealed from is reversed and the cause remanded for the entry of a proper decree in accordance with the principles here announced. The appellant, The Pittston Company, will recover its costs expended on this appeal.
Reversed and remanded.