author: Shauck, J.

text:
    Nichols v. French, Administrator.

      Residence property of intestate sold to pay mortgage lien, etc.— Widow who had separated from deceased — Not entitled to allowance in lieu of homestead — Section 5437, Revised Statutes— Widow of purchase money mortgagor — Dowable only of- surplus after mortgage satisfaction.

    1. When one dies intestate leaving a widow, who having separated from him, is permanently residing elsewhere, and the property on which he resided is brought to sale for the payment of a mortgage lien thereon and for the payment of his debts, she is not entitled to an allowance out of the proceeds in lieu of homestead, the widow’s right in that regard being fixed by Section 5437, Revised Statutes, which confines the right to “a widow composing a part of the decedent’s family at the time of his death.” (Elliott v. Plattor, 43 Ohio St., 207, approved and followed.)
    2. The widow of a purchase money mortgagor, mortgage given before marriage, and property sold by executors to pay the mortgage debt is not dowable of the whole proceeds, but only of the surplus remaining after satisfying the mortgage. (Culver et al., Exrs., v. Harper, 27 Ohio St., 464, approved and followed; Kling v. Ballentine, 40 Ohio St., 391, and Mandel v. McClave, 46 Ohio St., 407, distinguished.)
    (No. 12202
    Decided December 20, 1910.)
    Error to the Circuit Court of Portage county.
    The record to be reviewed was made in the court of common pleas to which an appeal had been taken from the probate court, and the record of the circuit court where the former record was reviewed. The proceeding was instituted by the defendant in error who alleges that he is the duly appointed and qualified executor of the estate of James H. Nichols, deceased, but as no will appears in the record we assume that he is the administrator. of the estate of James H. Nichols. The proceeding was for an order to sell the real estate of the decedent to pay his debts, the personal estate being insufficient for that purpose. The plaintiff in error, Anna B. Nichols, is the widow of James H. Nichols. In her answer she waived the assignment of dower by metes and bounds and consented to the sale of the premises and asked for the payment to her out of the proceeds of sale of $500.00 in lieu of a homestead, and also of the value of her dower in the entire proceeds of the sale not diminished by the amount required to discharge the admitted lien of a mortgage upon the premises. Whether she is entitled to allowance in lieu of homestead and whether she is dowable of the entire proceeds, or only of the surplus remaining after the discharge of the mortgage, are questions controverted in the case.
    The material facts are as follows. A former. wife of James H. Nichols had died intestate and seized in fee of these lands, which thereupon descended to her two children. Thereafter James II. Nichols, father of the children, purchased the lands from them and executed the mortgage mentioned for the purchase money. Thereafter, on the 14th of November, 1899, he intermarried with the plaintiff in error, and they lived together upon the premises until May, 1905, when, in consequence of disagreements, they separated permanently, she going to reside with her parents, and not thereafter residing upon these premises. No children were born of this marriage. This proceeding was instituted February 9, 1909. The court of common pleas adjudged to the widow $500.00 in lieu of a homestead and dower in the entire proceeds of the sale. On a proceeding in error to the circuit court there was a reversal of the judgment making an allowance in lieu of a homestead and an affirmance of that awarding her alimony in the entire proceeds of sale. Mrs. Nichols files a petition in error here asking for a reversal of the judgment of the circuit court as to the allowance in lieu of a homestead, and the defendant in error files’ a cross-petition in error asking a reversal of the judgment of the circuit court in awarding dower in more than the surplus. '

      Mr. I. T. Siddall and Mr. C. D. Ingell, for plaintiff in error, cited and commented upon the following authorities:

      Urmey’s Exrs. v. Wooden, 1 Ohio St., 160; Allen v. Russell, 39 Ohio St., 336; Collins v. Millen, 57 Ohio St., 289; Collier, v. Collier’s Exrs., 3 Ohio St., 369; Wetz v. Beard, 12 Ohio St., 431; Kelly v. Duffy, 31 Ohio St., 437; Bills v. Bills, 41 Ohio St., 206; Dittey v. Ellifritz, 8 C. C., 278; Jackson. v. Reid, 32 Ohio St., 447; Rogers v. Day, 115 Mich., 664; Stanton v. Hitchcock, 64 Mich., 316; Barker v. Dayton, 28 Wis., 367; Brown v. Brown’s Admr., 68 Mo., 388; Taylor v. Hargous, 60 Am. Dec., 606; Scott v. Scott, 73 Miss., 575; Bradley v. Deroche, 70 Tex., 465; Redmond’s Admr. v. Redmond, 112 Ky., 760; Lamb v. Wogan, 27 Nebr., 236; Sections 3108, 3117, 5430, 5435, 5437, 5440, 5441 and 5442, Revised Statutes.

      Mr. R. S. Webb and Mr. R. J. Webb, for defendant in error, cited and commented upon the following authorities:

      Elliott v. Plattor, 43 Ohio St., 207; Culver v. Harper, 27 Ohio St., 464; Fox v. Pratt, 27 Ohio St., 512; Unger v. Leiter, 32 Ohio St., 210; Walsh v. Buckins et al., 9 Ohio St., 331; Folsom v. Rhodes, 22 Ohio St., 435; Mandel v. McClave, 46 Ohio St., 407; Kling v. Ballentine, 40 Ohio St., 391; Bank v. Hinton, 21 Ohio St., 509; Jewett v. Feldheiser, 68 Ohio St., 523; Finley v. Bank, 52 Ohio St., 624; Joyce v. Dauntz, 55 Ohio St., 538; Hickey, Admr., v. Conine, 71 Ohio St., 548, 6 C. C., N. S., 321, 3 N. P., N. S., 209; Hays v. Hays, 16 O. F. D., 436; Sections 5435, 5437, 5440 and 6350, Revised Statutes.
   Shauck, J.

The conclusion of the circuit court that Mrs. Nichols is not entitled to an allowance in lieu of a homestead is, in view of the facts stated, justified by the terms of the statute and by Elliott v. Plattor, 43 Ohio St., 207. The right to a homestead to a decedent’s family is defined in Section 5437, Revised Statutes. There being no child, the right is to a “widow * * * composing a part of the decedent’s family at the time of his death.” An important part of this descriptive language would be disregarded if we should apply it in a case where, as here, the widow does not compose a part of the decedent’s family at the time of his death. Not only does the language import that a widow may not have composed a part of the decedent’s family, but the general rights which this statute confers are in homesteads and for those who use them as homes. Section 5440, Revised Statutes, does not enlarge the class of persons who are entitled to a homestead. It merely provides for its equivalent to those entitled under other provisions of the statute when they are precluded by a lien from taking the homestead in form.

Is the widow in the present case dowable of the entire proceeds of sale, or only of the surplus thereof that may remain after the payment of the mortgage? The mortgage being for purchase money, and executed before the marriage, the question is definitely settled in Culver v. Harper, 27 Ohio St., 464, where it was held that “The widow of a purchase money mortgagor, mortgage given before marriage, and property sold by executors to pay the mortgage debt is not dowable of the whole proceeds, but only of the surplus remaining after satisfying the mortgage.” The syllabus was prudently limited to the requirements of the case-where, as here, the purchase money mortgage was executed before the marriage. That the principle upon which dower is allowed would not necessarily restrict it to this precise case appears in Fox v. Pratt, 27 Ohio St., 512, where the right of dower was restricted to the surplus after the payment of a purchase money mortgage, though that mortgage was executed after the marriage. As early as Welch v. Buckins, 9 Ohio St., 331, it was held that where land is conveyed to one who executes a mortgage for the purchase price his seizin is technical only and there does not vest in him an estate to which dower attaches.

The only doubt as to the conclusive effect of these decisions upon the present controversy, is raised by the suggestion that Culver v. Harper has been substantially, though not formally, overruled by Kling v. Ballentine, 40 Ohio St., 391, and Mandel v. McClave, 46 Ohio St., 407. This view must, follow a consideration of what was said rather than of what was decided in the later cases. In Kling v. Ballentine, the husband was seized of the lands unincumbered and after becoming so seized he executed a mortgage to secure his own debt, the wife joining in the mortgage. As against others than the mortgagee she was held to be dowable of the entire proceeds; and this was correct because the entire proceeds represented the extent and value of the estate of which he was seized at one time during her coverture. The question presented in Mandel v. McClave et al. was in no respect different except that the wife’s claim was for contingent dower. Apparent differences in these cases will disappear if it is borne in mind that the 'husband’s mortgage for purchase money is effective without the wife’s signature because it is upon the same consideration as the mortgagee’s equitable lien for unpaid purchase money, and that under Section 8606, General Code, the extent of the estate of which the husband was seized as an estate of inheritance at any time during the marriage indicates the extent to which the wife is dowable. When, as here, and in some of the cases cited, he had at no time during the marriage more than an equity of redemption, she is dowable only of the surplus, but when, as in others of the cases he was seized of the entire estate, she is dowable of the entire proceeds of sale as against all persons except those as to whom she has waived her right. Does not the elementary proposition that a vendor’s lien takes precedence of the right of dower logically require this conclusion? The precise subject is thus treated by Chancellor Kent in 4th Commentaries, page 39: “Nor is the seizin sufficient when the husband takes a conveyance in fee, and at the same time mortgages the land back to the grantor, or to a third person, to secure the purchase-money in whole or in part. Dower cannot be claimed as against rights under that mortgage. The husband is not deemed sufficiently or beneficially seized by such an instantaneous passage of the fee^ in and out of him, to entitle his wife to dower as against the mortgage, and this conclusion is agreeable to the manifest justice of the case. The widow in this case, on foreclosure of the mortgáge and sale of the mortgaged premises, will be entitled to her claim to the extent.of her dower in the surplus proceeds after satisfying the mortgage; and if the heir redeems, or she brings her writ of dower, she is let in for her dower, on contributing her proportion of the mortgage debt.” And here the doctrine of Welch v. Buckins seems to be approved. Our decisions upon this'subject were-intelligently and carefully analyzed and compared in the opinion of Warrington,. Circuit Judge, in Hays v. Hays, 16 O. F. D., 436, where it was decided that in a case of this character the wife is dowable in the surplus only.

The judgment of the circuit court denying an allowance in lieu of homestead is affirmed. Its judgment awarding dower in excess of the surplus is reversed.

Judgment reversed in part.

Summers, C. J., Crew, Spear, Davis and Price JJ., concur.


source: Caselaw Access Project

author: Davis, J.

license: Public Domain

text:
    The Seeds Grain & Hay Company v. Conger.

      Dispute over unliquidated demand — Tender by debtor of check in full payment — Must be accepted or rejected as such — Acceptance of check and rejection of terms — Silence of debtor. not waiver — Accord and satisfaction.

    1. Where there is a bona tide dispute over an unliquidated demand and the debtor tenders an amount less than the amount in dispute, upon, the express condition that it shall be in full of the disputed claim, the creditor has but one alternative; he must accept the amount tendered upon the terms of the condition, unless the condition be waived, or he must reject it entirely, or if he has received the amount by check in a letter, he must return it.
    2. Where in such case the creditor retains a check which was sent upon the condition that it shall be in full satisfaction of the debt claimed to be due, and receives the money thereon and notifies the debtor that the amount is placed to his credit, but that he does not intend that the same shall close up the matter in dispute, to which the debtor makes no reply, such silence by the debtor does not amount to a withdrawal of the condition which accompanied the tender, nor to a waiver of it. The transaction is an accord and satisfaction.
    (No. 12213
    Decided December 20, 1910.)
    ■ Error to the Circuit Court of Champaign county.

      The .plaintiff in error commenced this action in the court of common pleas of Champaign county to .recover $700 and interest upon a contract for sale and delivery of oats by the defendant. The defendant in error contracted with the plaintiff in error to sell and deliver to it ten thousand bushels of oats, during the month of August, 1907, at thirty-seven cents per bushel. On the 17th day of August, defendant called plaintiff over the telephone and notified it that he could not comply with the contract and desired to settle. There is conflict in the testimony as to the substance of this conversation, the defendant insisting that there was a settlement on the basis of forty cents a bushel and the plaintiff denying this. Upon the same day, August 17th, the defendant sent the plaintiff a check for $300, endorsing thereon the following words: “Settlement in full August account,” and
    accompanied it with a letter in which he stated that it was according to their telephone talk of that day and was, “settlement in full for the 10,000 bushels oats sold you May 29, 1907, for August shipment.” Defendant on the same evening answered as follows: “Note telephone conversation with you this morning with reference to your sale of 10,000 bushels No. 3 white oats to us subject to Eastern weights and inspection, and your wish to settle that trade at 40 cents track your place, our bid of last night. This we can’t consent to do now, for the reason we find ourselves short a few cars of oats, and have nothing with which we can replace this at the present time, but would be. glad to buy the. .oats for you just as quickly as we get enough to replace the amount you sold us. We will not charge you anything for making the purchase, only the price we are obliged to pay for the oats. Jt seems to us, however, that you can get the-matter closed up more advantageously if you hustle around and buy the oats at Mechanicsburg and ship them on the contract. If you want us to buy them in, while we are short ourselves, we will give you the first ten cars of oats we can buy subject to the same conditions on which your sale was made.” Plaintiff received the check, drew the money on it, and kept it, but, at the same time, wrote a letter to the defendant, of the date of August 19th, acknowledging the receipt of the check for $300 and stating, “which amount we place to your credit. In our conversation of Saturday we did not mean to close up that transaction as we wrote you on Saturday evening. We have bought about 6,000 or 7,000 bushels of oats to-day at forty-one to forty-two cents and are bidding forty-two cents to-night, and just, as soon as we get a sufficient amount to cover your 10,000 bushels, will advise you about the cost of them, and I think you will want to adjust the matter as we wrote you on Saturday evening.” It does not appear on the record that there was any open account existing between the plaintiff and defendant, other than the $300 itfcm. The defendant made no answer to the plaintiff’s letter of August 19th.
    At the conclusion of the plaintiff’s testimony a motion was made by defendant’s counsel to withdraw the case from the jury and direct a verdict for the defendant, which the court then declined to do, but at the conclusion of all the evidence the motion was renewed and the court sustained it, upon the ground that under the facts above stated the plaintiff was not entitled to recover and that the transaction shown by the check and letters became an accord and satisfaction upon the plaintiff accepting the money. Upon petition in error the circuit court affirmed the judgment of the court of common pleas and this proceeding in error is prosecuted to reverse the judgment of both the lower courts.

      Mr. Lemuel D. Lilly, for plaintiff in error.
    There was error in this action for two reasons: First, because the accord was a question of fact for the jury and the facts were so disputed that the court should not have passed on them, but should have submitted the question to the jury. Second, under the circumstances of this case, the payment was not accepted by Seeds as a satisfaction and upon the receipt of the letter so stating, it was Conger’s duty to insist' upon the condition if he expected to hold Seeds to it.
    On the first proposition stated above, it is the rule that where the defendant admits the original contract, but pleads that a substitute contract was entered into, the burden is on him to show the substitute contract.
    In order to establish a defense of this character, there must be present in the transaction upon which it rests all the elements of a complete agreement— a lawful subject-matter, a sufficient consideration and the aggregatio menttum or mutual assent of the parties. Fuller v. Kemp, 138 N. Y., 231.
    If a debtor tenders to his creditor a sum of money in full of all legal claims, which the creditor may have against him on account, and the creditor receives- the money protesting that it is not sufficient, but saying that he will take it and pass it to the debtor’s credit upon his account, and the debtor does not express any dissent to this course, the acceptance of the tender is no bar to the recovery of such sum as may be found due him exceeding the amount of the tender. Gassett v. Andover, 21 Vt., 342; Robinson v. Railroad Co., 84 Mich., 658; Pottlitzer v. Wesson, 35 N. E. Rep., 1030.
    The Indiana court cited and approved Curran v. Rummell, 118 Mass., 482, and Fuller v. Kemp, 33 N. E. Rep., 1034; Cooley v. Kinney, 119 Mich., 377.
    Conger knew on the receipt of Seeds’ letter of August 17, that the check for $300 would not be accepted as full payment. He was advised again on the twentieth when he received Seeds’ letter acknowledging receipt of the check, that it was accepted only as part payment, and Conger never insisted on the condition. This brings the case at bar substantially within the principle of the case of Laroe v. Dairy Co., 73 N. E. Rep., 61, and Brake Co. v. Prosser, 157 N. Y., 289, 51 N. E. Rep., 986.

      Mr. Thomas B. Ware and Mr. Louis D. Johnson, for defendant in error.
    In the case at bar, the suit is upon an unliquidated demand — damages for. the violation of the contract of sale. The doctrine of accord and satisfaction goes back to the leading case of Cumber v. Wane, 1 Strange, 426. Also found in Smith Leading Cases. This rule never did hold where the demand was for an unliquidated amount and is held by the undecided weight of authority not to apply when any part of the claim is unliquidated and that the accepting of a check for the amount admitted to be due, coupled with the; condition that it would be received in full payment operated as a release of the unliquidated portion. Railway Co. v. Clerk, 178 U. S., 365; De Arnaud v. United States, 151 U. S., 483; Hull v. Johnson, 46 Atl. Rep., 182; Hussey v. Crass, 53 S. W. Rep., 986.
    In another case upon a contract for services rendered in Japan, the employer contended that the payment should be made in yens, and not American money, and told defendant that he should take a check representing the payment in yens, or nothing. Plaintiff later accepted a check for the amount in yens, and signed a receipt stating that the amount was in full payment of the contract, with salary, interest and allowance. Held, that the receipt constituted an accord and satisfaction. Komp v. Raymond, 59 N. Y. Supp., 909. Authority to the same effect is not wanting in Ohio. Iron Works v. Hazen, 24 C. C., 681.
   Davis, J.

In the application of the law of accord and satisfaction, a distinction between liquidated and unliquidated demands is universally recognized. Where there is a bona fide dispute over an unliquidated demand and the debtor tenders an amount less than the amount in dispute, upon an express condition that if accepted it shall be in full of the disputed claim, the creditor must accept it upon the condition unless the condition be waived, otherwise he must refuse it; or if he has received the amount tendered he must return it. 1 Enc. L. & P., 626-628. He cannot accept the tender in such case and recovér the balance which he claims, because- he is presumed to have accepted it upon the express condition on which it was offered.

Generally, however, the law is applied differently in cases of liquidated and undisputed claims, the reason being, as sometimes stated, that the payor pays no more than he is clearly bound in law to pay and there is therefore no consideration for a release of the remainder of the obligation. But even in such a case, it has been held that when the parties have agreed in settlement of a bona fide dispute between them, that the lesser sum shall be received in satisfaction of the greater, it will be regarded as an accord and satisfaction. City of San Juan v. St. John’s Gas Co., 195 U. S., 510. Especially if the agreement has. been fully executed. Dreyfus & Co. v. Roberts, 75 Ark., 354.

Keeping in mind the foregoing principles, it is easy to distinguish from the case in hand all of the cases cited by counsel for plaintiff in error. Indeed, some of them are distinctly against him, notably Fuller v. Kemp, 138 N. Y., 231, and Eames Vacuum Brake Co. v. Prosser, 157 N. Y., 289. In the latter case it was said that, “Ordinarily the retention of a check inclosed in a letter which refers to the amount as the balance due on accounts between the parties, will not be held to be an accord and satisfaction so as to bar an action for the balance due. It is only where a dispute has arisen between the parties as to the amount due, and a check is tendered on one side in full satisfaction of the matter in controversy, that the other party will be deemed to have acquiesced in the amount offered, by an acceptance and retention of the check,” citing in support of the last sentence, Fuller v. Kemp, supra, and Nassoiy v. Tomlinson, 148 N. Y., 326.

Another case, relied upon for the plaintiff in error, is Gassett v. Andover, 21 Vt., 342. There the debtor tendered a sum of money in full for all legal claims which the creditor had against him upon account. The creditor received the money, protesting that it was not sufficient, but said that he would take it and pass it to the debtor’s credit on the account. The debtor expressed no dissent. It was held that the acceptance of the tender did not bar the creditor’s right to recover such- sum as might be found due him on the account. It is entirely clear that the supreme court of Vermont did not regard this judgment as inconsistent with its former judgment in another case, reported in the same volume, McDaniels v. Lapham et al., 21 Vt., 222, in which it was held that “The doctrine, that the receiving a part of a debt due, under an agreement that the same shall be in full satisfaction, is no bar to an action to recover the balance, does not apply to any cases, except when the plaintiff’s claim is for a fixed and liquidated amount, or where the sum could be ascertained by mere arithmetical calculation. But when a party makes an offer of a certain sum to settle a claim, when the sum in controversy is open find unliquidated, and attaches to his offer the condition, that the same, if taken at all, must be received in full, or in satisfaction, of the claim in dispute, and the other party receives the money, he takes it subject to the condition attached to it, and it will operate as an accord and satisfaction, even though the party, at the time of receiving- the money, declare that he will not receive it in that manner, but only in part satisfaction of his debt so far as it will extend.” In this case there is a dispute which'grew out of the inability of the defendant to fulfil his contract to deliver 10,000 bushels of oats during the month of August at thirty-seven cents a bushel. The defendant sought to limit his liability by securing a settlement at the highest market price on August 17th; and he insists that he succeeded in doing so and paid the amount agreed upon, although the plaintiff attempted to recede from the settlement and sought to hold him on the original contract. The plaintiff denies all of this, except the payment of the money. Here was a real controversy, which yet exists, over the amount of the defendant’s liability. It was a dispute over a demand which was yet contingent and the amount of which was not yet determined. We have at present no concern as to the merits of this contention. It is enough for our present purpose that it plainly appears that there was such a difference between these parties; and that, the defendant sent to the plaintiff his .check, indorsed on ’the face of it, “Settlement in full August account,” and accompanied it with a letter saying, “Enclosed' find my check for $300, which, according to our talk over the ’phone today is settlement in full for the 10,000 bushels oats sold you May 29, 1907, for August shipment.” There was no othpr claim or account between them and this .plainly expressed condition of payment was never withdrawn; for mere silence by the debtor under the circumstances of this case does not amount to a withdrawal of the condition, nor a' waiver of it. The plaintiff, had only one alternative, to accept the check as payment in full or to return it. He kept it and drew the money on it, knowing the condition imposed, and thereby completed the transaction as an accord and satisfaction.

The judgment of the court below is

Affirmed.

Summers, C. J., Crew, Spear, Sitauck and Price, JJ., concur.


author: Spear, J.

text:
    Hayner v. The State.

      Traffic in intoxicating liquors — Constitutionality of law against soliciting orders — In county where sale is prohibited — Question .of number of solicitations — Application of section 6/Q¿j, Revised Statutes — Solicitation by letter or by person — Applies to county where sale is to be completed.

    1. Section four of the act passed March 12, 1909 (100 O. L., 89), entitled “An act to amend and supplement section 5 of an act entitled, ‘An act providing against the evils resulting from the traffic in intoxicating liquors,’ passed. May 14, 1886, as amended March 28, 1906, and to further provide against the evils resulting from the traffic in intoxicating liquors,” which section makes it an offense to solicit'orders for intoxicating liquor in any county where the sale as a beverage is prohibited, is not violative of the constitution of the state and is a valid law.
    2. To prove a violation of this section it is not necessary to show a number of solicitations. By virtue of section 6794 of the Revised Statutes, which provides that words in the plural include the singular, and in the singular include the plural, proof of one solicitation satisfies the requirements of the statute.
    3. Such solicitation may be made by letter as well as in person.
    4. Where a letter soliciting an order for the sale of liquor provides, as a condition of sale, that the person solicited, on receiving the liquor, has the option to accept or not,- and to send the price named only in case he approves the goods and concludes to purchase, otherwise to return them at the sender’s expense, such approval and conclusion to purchase are necessary to complete a sale. Therefore, the solicitation is for a sale to be completed in the county of the residence or business of the one solicited, and prosecution for violation of the act is properly conducted in such county.
    (No. 12416
    Decided December 20, 1910.)
    Error to the Circuit Court of Knox county.
    At the November term, 1909, of the common pleas of Knox, the plaintiff in error, W. M. Hayner, was indicted for a violation of the act providing against the evils resulting from the traffic in intoxicating liquor, passed May 14, 1886, as amended March 28, 1906, and further amended March 12, 1909, the charge being that of soliciting, October 11, 1909, an order for the sale of intoxicating liquor as a beverage in the county of Knox, a county in which the sale of intoxicating liquor as a beverage had been and then was prohibited.
    To this indictment the defendant pleaded not guilty. On trial he was convicted and sentenced to pay a fine of three hundred dollars and the costs. This sentence and judgment was affirmed by the circuit court. The accused brings this proceeding to reverse both judgments.

      Messrs. McMahon & McMahon and Messrs. Waight & Moore, for plaintiff in error.
    The section of the statutes under which the indictment was found is section 4, 100 O. L., 92.
    This section is the closing one of a statute of a conglomerate' nature, evidently one of license and regulation, acknowledging the right to existence of the saloon as a saloon, but establishing a standard for men who are to operate the same, and providing for the elimination of disorderly places and of improper men.
    As the constitution prohibits license, any law must fail which in effect amounts in law to license, and no valid argument can be made for either side on the assumption of license. But in the absence of prohibition the business in controversy is entitled to protection as other property. We are now only concerned with the interpretation of section 4. The offense is a misdemeanor, being statutory, and is not the violation of an ordinance.
    This being a penal statute, it is to be construed strictly. State v. Meyers, 56 Ohio St., 350; Shultz v. Cambridge, 38 Ohio St., 659; Railway Co. v. Wells, 65 Ohio St., 313; Moore v. Given, 39 Ohio St., 661.
    The state claims that a single letter written or mailed as this was, is within the statute. In such case each letter must be a separate offense. After the first offense, each offense is subject to a fine of $800. Assuming that in the mail-order business 1,000 such letters were mailed to Knox county, the defendant is liable to fines of $800,000 after the first conviction.
    All-that we now argue is that the state is wrong in the contention we are now considering. The language of the statute bears us out. The offense described is the “soliciting of orders,” not the soliciting of “an order.” Railway Co. v. Wells, 65 Ohio St., 319; Rockwell v. State, 11 Ohio, 131; Miller & Gibson v. State, 3 Ohio St., 477.

      In construing a statute upon a subject upon which numerous statutes have been passed, indicating a policy, the provisions of the statute should be given a construction in harmony with the policy shown by a consideration of all of them. Cincinnati v. Connor, 55 Ohio St., 82.
    The county local option statute only prohibits sales, made within the county, if a dry one, and does not prevent the purchase by any inhabitant •of a dry county, of intoxicating liquors as a beverage in a wet district, either by order by mail or by messenger sent into a wet territory — and does not forbid to the citizen of the dry county the right to drink his liquor when purchased. State v. Mullin, 78 Ohio St., 358; State v. Lynch, 81 Ohio St., 336.
    Of course, without exception in the statute, which stands alone and is complete in itself, an exception cannot be interpolated by the court. Stevens v. State, 61 Ohio St., 597; Leisy v. Hardin, 135 U. S., 100.
    The same is true of Ohio. All of the territory of Ohio is wet, unless made dry by vote under the statutes named. Even the saloon is recognized and regulated by the Dean law, where liquors are sold over the counter to be drunk on the premises. And the legality of the manufacture of whiskey and its sale, and of the sale of whiskey, etc., by dealers, is expressly recognized even in certain dry territory.
    This condition in Ohio must always be borne in mind, as contrasted with states where state-wide prohibition exists, in which state all sales are illegal, even to a certain extent interstate commerce sales. And when considering decisions of the courts of other states, this must be remembered.
    Under the construction placed upon this law by the state, a person soliciting a single order, to be. filled in a wet territory, although that order is not filled, is visited with three times the penalty inflicted upon one who sells in violation of law within the county, or city, or residence district; six times as much as one who sells on Sunday, etc., etc. And such penalty must be inflicted on one not in the business who solicits a single sale, if the state’s argument is right. We cannot suppose that the legislature was ignorant of this great variance.
    We call attention to the language of Judge Davis in the case of Railway Co. v. Wells, 65 Ohio St., 319, where he refers to the severity of the penalty as an' argument against a claimed construction of the law.
    Premising that it has a right to receive an order from a dry county and to fill it, the usual course of business leads it necessarily into advertisement, either by mail or by newspaper publications. Prior to the passage of the solicitation law there was no question of its right to send its mail matter anywhere, or to advertise even in the papers published and circulated in the dry counties. This was exclusively its method of business, we will suppose, when the law was passed.
    Several recent cases, decided by the supreme court of the United States, are in point. Section 16, Bill of Rights; Article XIV, U. S. Constitution.
    Courts are not open, nor is one given the equal protection of the law if the penalties of conviction, fine and forfeiture of office await the honest citizen who believes his rights have been invaded, if such penalties attach to a failure to defeat the law.
    This is well reasoned in a very recent case "in the supreme court of the United States, decided March 23, 1908. Ex parte Young, 209 U. S., 123; Cutting v. Stock Yards Co., 183 U. S., 99.
    The statute is otherwise in violation of the constitution. Article 1, Section 1, Bill of Rights; Morgan v. Nolte, 37 Ohio St., 23.
    Admitting the right of the legislature to provide against the evils resulting from the sale or use of intoxicating liquors, and admitting that we might have state-wide prohibition by sole act of the legislature, yet the law must be tested by conditions that exist. And it is the right of the court to protect the individual from wrongful legislative action, and to determine what is an encroachment upon his liberty. Miller v. Crawford, 70 Ohio St., 207.
    Every crime involves, at least in its final consummation, the violation of some legal right of some individual or class of individuals, or the public. But no act constitutes a crime in its initial stage, unless that act, in its final consummation, constitutes a violation of some legal right of some individual, or class of individuals or the public. This principle is fundamental. Gage v. State, 24 C. C., 727.

      We conclude our argument with the point that the claim of the state, as applied to mail-order houses, brings the law into conflict with the government of the United States, in that it directly tends to control what may pass through the mails, and to materially diminish the revenues of the United States government.
    The government of the United States has exclusive control over the mails, etc. • There is no question here, as in the case of jurisdiction over interstate commerce, of a divided jurisdiction.
    The following cases are sufficient citations:

      Ex parte Jackson, 96 U. S., 735; In re Rapier, 143 U. S., 111; Clearing House v. Coyne, 194 U. S., 497; School, etc., v. McAnnulty, 187 U. S., 95.
    We must remember that the whole mail service is the creature of federal law, and that it is the source of immense revenue, as well as the cause of heavy expenditure. The right to use the mails comes from the federal government. It is the right of the citizen derived from federal laws. The state can in no way interfere. Railroad Co. v. Illinois, 163 U. S., 143; Railroad Co. v. Wharton, 207 U. S., 328.

      Mr. James A. Schaeffer, prosecuting attorney; Mr. W, B. Wheeler and Mr. James A. White, for defendant in error.
    The letter of Mr. Hayner shows an absolute defiance of the law of our state, both with reference to soliciting orders and the manner of shipping liquor into dry territory. A casual reading of the letter will settle the question beyond the peradventure of a doubt that Mr. Hayner not only solicited orders for liquor in Knox county, but used all of the phraseology and wording at his command to urge the receiver of the letter to send in his order for liquor, and in addition, offers a prize for so doing.
    When an offense is committed by sending a letter through a postoffice, the sender may sometimes be held at the place where he mails the letter. An unbroken line of decisions holds, however, that he may be held where the letter is received, especially where the letter represents a solicitation of any kind. In re Palliser, 136 U. S., 266.
    This theory is sustained in the following cases: King v. Girdwood, 1 Leach, 142; King v. Johnson, 7 East, 65; Commonwealth v. Blanding, 3 Pick., 304; In re Buell, 3 Dillon, 116; People v. Rathbun, 21 Wend., 509; People v. Adams, 3 Denio, 190; Foute v. State, 15 Lea, 712; United States v. Thayer, 209 U. S., 39.
    Other cases supporting this same theory are: Benson v. Henkel, 198 U. S., 15; Burton v. United States, 202 U. S., 387.
    It is clear as noonday that the buyer does not accept the whiskey under the Hayner contract until he has received it, smelled it, and tried it to his entire satisfaction. But the question of “sale” is not the real question at issue. It is a question of “soliciting for a sale.”
    The court will find a full discussion of this question in the case of Rose v. State, 62 S. E. Rep., 117. While this case was overruled by the supreme court on the ground that the letter came from outside the state, and was protected by the interstate commerce law, yet on all other points the decision states the law correctly with reference to soliciting orders for liquor inside of the state.

      Another case which throws light on this question is Zinn v. State, 114 S. W. Rep., 227.
    The courts have held a single sale of intoxicating liquor constitutes an offense. Belle Center v. Welsh, 24 W. L. B., 176; Volk v. Westerville, 8 N. P., 139, 3 N. P., N. S., 241.
    The statute, for example, enacted it should be a felony to steal bank notes, and it was adjudged it was a felony to steal a single bank note. King v. Hassel, 1 Leach, 1.
    The act providing for the prosecution of any person who should keep houses of bawdry or ill-fame, was construed to mean a person might be convicted who kept but one such place. State v. Main, 31 Conn., 572.
    The word “persons” in the plural is often construed as applicable to a single person. Hill v. Williams, 14 Serg. & R., 287.
    Where the statute imposed penalties for a failure to “comply with conditions of” a section, it was construed that a disobedience of any one of the provisions subjected the delinquent to the penalty. State v. Railway Co., 32 Fed. Rep., 722.
    The solicitation may be either in person, by an agent, or through a communication; consequently, no matter how the solicitation is made in dry territory, we claim it is a violation of the law regardless of whether the seller from whom the solicitation comes lives in wet territory or dry territory. The gist of opposing counsels’ contention is that if the sale of liquor could be made legally in Dayton, then it is not illegal to solicit an order for it in Knox county, or dry territory. This very question was before the supreme court of North Dakota in the case of Delamater v. State, 205 U. S., 93.
   Spear, J.

The statute which the plaintiff in error, Hayner, was convicted of violating is the fourth section of the act passed March 12, 1909, entitled: “An act to amend and supplement section 5 of an act entitled, ‘An act providing against the evils resulting from the traffic in intoxicating liquors/ passed May 14, 1886, as amended March 28, 1906, and to further provide against the evils resulting from traffic in intoxicating liquors,” 100 O. L., 89. Section four provides as follows: “Any person, or persons, firm, or any officer of any corporation, who, directly or indirectly, after April 15, 1909, solicits orders for intoxicating liquor in any county or territory where the sale of such liquor as a beverage is prohibited shall be subject to a fine of not less than one hundred and fifty dollars nor more than four hundred dollars for the first offense, and for the second offense not less than four hundred dollars nor more than eight hundred dollars.”

The record shows that the soliciting charged was done by the mailing at Dayton, Montgomery county, Ohio, by the defendant, addressed to The J. B. Foote Foundry Company, Fredericktown, Knox county, Ohio, on October 11, 1909, of a certain letter, circular and post card, and that the same were received by the Foote Foundry Company, by due course of mail at Fredericktown, Knox county, Ohio. The letter reads as. follows:

“Dayton, Ohio, October 9, 1909.
“The J. B. Foote Fdry. Co.,
“Fredericktown, Ohio:
“Dear Sir: That special ‘lock-stopper’ offer we wrote you about has created a sensation. We’ve never known anything to equal it. Orders are coming in a perfect flood from every state in the "Union. The response is so tremendous — so almost unanimous — that we are wondering why you, too, did not take advantage of it.
“The offer is still open and we urge you to send us your order now. We want to place some of this-magnificent whiskey before you. We want to. prove to you how rich, pure and delicious it is. We want to show you how much you save by our ‘direct from distillery’ plan of selling. We want you to have one of those handsome lock-stopper decanters we send with each order.
“You need not send us any money in advance. Just sign and mail us the enclosed order card and we will send you in plain sealed case express charges paid three quarts of Hayner private stock bottled-in-bond whiskey, and one quart of fine old W. S. K. straight whiskey, and we will include absolutely free Hayner’s.sideboard decanter with combination lock-stopper as described in the circular enclosed.
“When the goods arrive try the whiskey and examine the lock-stopper and decanter, and if you find them all we claim then remit us the price— $3.70. Otherwise you may return the goods at our expense and you will not be out one cent.
“The guarantee is clear and distinct. It means. what it says. We must please you, we riiust send you a quality that will surpass your highest expectations, and we will do it. Put us to the test. Sign and mail the postcard to Mr. Kidder, manager at Dayton, and do it now while it is before you.
“Very sincerely,
“The Hayner Distilling Co.,
“W. M. Playner, President.”

The circular is directed particularly to setting forth the advantages of the lock-stopper decanter mentioned in the letter, and to depicting the high quality of certain brands of whiskey manufactured at the defendant’s distillery, and commending the goods to the consumer, as “absolutely pure,” “distilled from the choicest grain,” “of the most distinguished quality,” and “guaranteed under the United States pure food and drugs act,” the text ornamented with an attractive cut of the lock-stopper decanter; but the circular is mostly in fine type and too long for insertion here.

The postcard is as follows:

“Postcard. (Stamp.)
“This side for address only.
“W. S. Kidder, Dayton, Ohio.
“Dear Sir: You may send me by prepaid ex-, press the package as per your recent proposition. It is understood that if, after trying your product, I find that it is not as represented, I am privileged to return balance by express at your expense. If the goods are as represented and I keep them I agree to remit $3.70. Remember, I bind myself only as above. .
“Name.......... Post office..........Express
“Office .......... State........If member of firm, give firm name.”

It is further shown by the record that, by force of the county local option law, the sale of intoxicating liquor as a beverage was prohibited in Knox county, Ohio, on and prior to October 11, 1909, and that Fredericktown, Ohio, is located within the boundaries of Knox county.

Upon this state of facts the question presented is whether or not an offense has been proven against the provisions of section four of the act, and whether, if such violation has been shown, the section itself is a valid law. The court has been favored by the learned counsel with very extended argument, for and against. Such argument usually invites to enlarged discussion, but it seems to us that the real, essential issues are comparatively simple, and do not require extended discussion on the part of the court, although it is' proper to briefly notice the points presented.

We assume that the act of soliciting may be done by letter as well as in person. The dictionary term “solicit” implies “an application to another for obtaining something.” It is the every-day experience of all of us that in other matters it is so done, and as there is no reason to presume that the general assembly used the word in any sense other than the ordinary sense, we give that construction to the term. We suppose, also, that the letter was intended to take effect in the county of Knox. If it was so intended then we see no reason why the prosecution was not properly commenced in that county. We call attention to the following authorities, and pass this matter without further comment. In re Palliser, 136 U. S., 257; The King v. Girdwood, 1 Leach, 142; The King v. Johnson, 7 East, 65; Commonwealth v. Blanding, 3 Pick., 304; The People v. Rathbun, 21 Wend., 509; same v. Adams, 3 Denio, 190; Foute v. The State, 15 Tenn., 712; United States v. Thayer, 209 U. S., 39; Benson v. Henkel, 198 U. S., 1; Burton v. United States, 202 U. S., 344; Rose v. The State, 4 Ga. App., 588, 62 S. E. 117.

Many points of objection to the judgments below are urged by counsel for plaintiff in error. In the first place it is contended that the statute has not been violated because the sending of one letter only is involved in this transaction while the thing forbidden by the statute is the soliciting of orders, not the solicitation of an order. It would seem that our statute, section 6794, Revised Statutes, a statute intended to do away with mere technicalities, sufficiently answers this objection. Among other like provisions relating to other subjects it provides that “words in the present include the future tense, and in the masculine include the feminine and neuter genders, and in the singular include the plural, and in the plural include the singular number.” It appears clear that unless it is manifest, as it is not in this case, that more than one solicitation is necessarily required to bring about the desired result, that is, a sale, that the statute is as well satisfied by one instance as it would be by a dozen. Authorities are abundant in support of this conclusion. We cite a few of the many: King v. Hassell, 1 Leach, 1; The State v. Main, 31 Conn., 572; Lynch v. The State, 12 O. C. C., N. S., 330, same, 81 Ohio St., 489; Belle Center v. Welsh, 24 W. L. B., 176.

It is further insisted that the statute cannot be violated unless the solicitation, if effectual, would result in an illegal sale, which could not be the result in the present case because the sale, if induced, would be made at Dayton, in the county of Montgomery, (wet territory), and not at Frederick-town, in the county of Knox, and the legislature is without authority to make solicitation of a legal sale an offense. But would the sale, if brought about, be made at Dayton? The letter specifies as an element of the solicitation, the condition that the purchaser need not send any money, but simply sign and mail the card, the terms of which authorize the shipment of the package on the condition that if the purchaser finds the product not as represented he is privileged to return balance by express at sender’s expense. Surely at this stage there is no contract of sale. But if the party solicited finds the goods as represented and he keeps them then he agrees to remit $3.70. That conclusion, and his consequent action thereon, would all be done in Knox 'county. Compliance with the condition by the purchaser would conclude a bargain, but at no stage prior to that could either party enforce any contract liability against the other. We understand the rule to be, as stated in Benjamin on Sales, (5 ed.)/319, that: “Where the buyer is by the terms bound to do anything as a condition, either precedent or concurrent, on which the passing of the property depends, the property will not pass until the condition be fulfilled, even though the goods may have been actually delivered into the possession of the buyer.” Nor would there be delivery until the buyer had determined to accept, the rule being that an acceptance by the purchaser is as necessary an incident to delivery as a tender by the seller. See, generally, Bonham v. Hamilton, 66 Ohio St., 82. It is clear that, by reason of this principle, the general rule that the title to goods shipped passes to the buyer on delivery by the seller to a common carrier, has no application to this case, and that the sale, had one been induced, would have taken place' in Knox country, dry territory, and would therefore have been an illegal sale.

Nor does there seem to be support in reason, and certainly not in authority, for the proposition that the general assembly does not possess authority to forbid solicitation for orders for intoxicating liquor in dry territory, even though the sale might be had in wet territory. It would be a needless use of space to stop to set forth at length the main purpose of our temperance legislation, for the same has been given in detail in many previous decisions. We need but suggest here that one purpose is the removal and suppression of temptation to overindulgence on the part of a large class who are weak of will and likely to be controlled to their injury by the cravings of appetite. To accomplish this purpose it would seem that legislation of the character in review, reasonable in .its provisions, would afford material aid in bringing about the condition of society which the general legislation on the subject of intoxicating liquors seeks to establish. And as to authority in support of this specific provision there seems to be abundance, and that of the highest character. We call special attention to the case of Delamater v. South Dakota, 205 U. S., 93. That is a liquor case wherein Delamater was charged with soliciting in South Dakota (dry territory), a contract for the sale of liquor by a concern of another state (wet territory), in violation of the statute of South Dakota forbidding such soliciting and punishing the same as a misdemeanor. The special defense interposed was that the act was repugnant to both the law of the United States respecting interstate commerce, and the commerce clause of the constitution, and the opinion is devoted largely to a discussion of that phase of the contention, but the general subject of the validity of the South Dakota act is also discussed. The holding is that the Dakota statute is not repugnant to the act of congress respecting' commerce, nor to the commerce clause of the federal constitution; that “the general powers of the states to control and regulate, within their borders, the business of dealing in, or soliciting orders for, the purchase of intoxicating liquors is beyond question;” and that “although a state may not forbid a resident therein from ordering for his own use intoxicating liquor from another state it may forbid the carrying on within its borders of the business of soliciting orders for such liquor although such orders may only contemplate a contract resulting from acceptance in another state.” Attention is called to two Arkansas cases, which deserve notice. Carter v. The State, 81 Ark., 37, decided December 3, 1906, holds that, within the meaning of section 5133, Kirby’s Digest, making it unlawful for any person, firm, partnership, or corporation engaged in the sale of liquors to solicit orders for the sale of liquors in any place where the same is prohibited by law, an advertisement in a newspaper published in a prohibition district that' liquor may be obtained from a licensed liquor dealer doing business elsewhere, is not a solicitation. The validity of the act itself forbidding soliciting is not questioned. In the following year, to-wit, April 1, 1907, the statute was repealed and a new act of a more comprehensive character passed which is given construction in Zinn v. The State, 88 Ark., 273, the decision rendered November 30, 1908. The holding is: “A statute making it unlawful to solicit orders for intoxicating liquors in prohibition territory, through agents, circulars, posters, or newspaper advertisements, is a valid exercise of the state’s police power,” and “ * * * is not unconstitutional as infringing the power of Congress under U. S. Const., sub. 1, section 8, to establish postoffices and designating what shall be excluded from the mails.”

As the case at bar does not relate to the matter of advertising we are not called upon to discuss or consider that phase of the subject. Counsel for plaintiff in error cite State v. Wheat, 48 W. Va., 259, as sustaining their contention that soliciting in a dry county is not unlawful. The question in that case involved construction of a license statute. Wheat was licensed as a wholesale liquor dealer in Ohio county. The solicitation was by circulars mailed in that county to persons in Brooke county. Some of the reasoning of the court seems to favor the claim of counsel, but as a whole the case rests on the effect to be given to the license, and to turn largely upon the situs of the solicited sales, the opinion holding: “The code says that if one has a sale license he may solicit orders, and it seems to me that such licensee may solicit custom anywhere as an incident to that license. It would seem immaterial that the law confines the licensee to business at a particular place or one county, since the solicitation and receipt of orders are not for sale and delivery in other counties, but for sales to be executed as consummated contracts at the place and in the county designated in the license; that is the place of sale.” On the whole, the decision does not afford much aid in disposing of the contention in the case at bar. Lewis v. The State, 58 Tex. Crim., 351, is also cited. An examination of this case shows that the resemblance to our case is too faint to afford light in disposing of any of the questions which we have, or indeed to justify a fuller statement of it.

It is further contended that the act is invalid because violative of the constitution in the imposition of excessive fines. The fines prescribed are larger than in many other sections of the liquor laws, but is it shown that punishment of less amount would prove effective? We think not. The answer of counsel for the state appears to fully meet this objection. In substance it is that, as matter of common knowledge, the profit in the wholesale dealing in liquor is so great that a small fine would utterly fail to prove a deterrent, inasmuch as the dealers could easily afford to pay such fine and continue the soliciting of orders. The subject is clearly a matter of legislative discretion with which the courts should not interfere unless the punishment is so excessive as to amount to cruelty or confiscation, which clearly is not- the case here.

Further contention is made that the whole statute is unconstitutional, the first part as being a license law, and the fourth section- as being a general law not of uniform operation. It seems to us that it cannot be necessary at this late day to enter into a discussion as to whether our liquor taxing laws are license laws. The ground has been fully plowed and harrowed in many previous decisions. And section four does operate uniformly within the meaning given that requirement of the constitution as to general laws because the operation of the statute is the same in all parts of the state where the same circumstances and conditions exist. An act is not required to be of universal operation in order to be of uniform operation. To sustain this objection would be to overrule all the decisions of this court relating to local option. We regard the policy of the state in that respect as established by those decisions, and are' not disposed at this late day to disturb it.

It is further urged that section four, as construed by the courts below, would prevent mail-order houses .from using the mails for lawful purposes, in the ordinary transaction of their business, and that would be an invasion of the right of the citizen to use the mails and of the general government to receive large revenues from a business recognized by it as lawful and equally legitimate under state laws. This objection, though plausible, we think is without force. No reason is perceived why it should be any more of a hardship for the mail-order people to pay respect to the laws of the states with whose citizens they desire to deal than other people. If the section as to other objections is a valid law, and we have found that it is, it would seem that the inconvenience visited upon a few large stores here and there would hardly afford a ground for holding it invalid. As to the loss of revenue to the general government it would seem sufficient to recall the Delamater case, supra, where the decision of the highest court of the land supports the power of the states to enact just such legislation.

Objection is urged that, as construed by the courts below, the act is unreasonable and oppressive. Courts are not concerned with the question of the wisdom or the usefulness of this class of legislation. All such questions are within the exclusive province of the law-making body, the general assembly. In many counties of the state, the most we understand, a majority of the people have shown by their votes approval of such measures and the general assembly has heeded this sentiment by, from time to time, perfecting such legislation with the hope if possible of fully accomplishing the purpose designed. The courts will do their whole duty when they determine whether or not the particular act, in the provisions challenged, is or not within the competency of the law-making body, and if it be, then to give construction to the language, employed, as it is found in the statutes, and award judgment accordingly.

We are of opinion that the record shows that an offense has been committed by the plaintiff in error in violation of the fourth section of the act, and that the section thus offended against is a valid law.

The judgment of the circuit court will be

Affirmed.

Summers, C. J., Crew, Davis and Price, JJ., concur.


author: Summers, C. J..

text:
    Fiesler v. Fiesler.

      Divorce — Aggression of wife — Order adjudging or refusing husband’s property to wife — Alimony—Appeal—Sections 5700 and 5706, Revised’ Statutes.

    An order adjudging or refusing to adjudge a share of the husband’s property to the wife when a divorce is granted to the husband by reason of the aggression of the wife, as provided by Section 5700, Revised Statutes, is an order granting or refusing alimony, within the meaning of Section 5706, Revised Statutes, and either party may appeal from such order.
    (No. 11431
    Decided December 20, 1910.)
    Error to the Circuit Court of Cuyahoga county.
    The facts are stated in the opinion.

      Messrs. McKisson & Minshall, for plaintiff in error.

      Mr. Glenn E. Griswold and Mr. M. P. Mooney, for defendant in error.
   Summers, C. J..

The husband, Wallace M. Fiesler, was granted a divorce on account of the aggressions of his wife, Emma D. Fiesler, the plaintiff in error.

The wife had filed a cross-petition for alimony, and duly appealed the cause to the circuit court. The circuit court dismissed the appeal for want of jurisdiction, and error is prosecuted in this court. In the final decree the court of common pleas ordered that the cross-petition of the wife for alimony be refused and dismissed the cross-petition. No alimony was allowed to the wife, and the husband was ordered to pay the costs of the action and an attorney’s fee to the wife’s attorney.

It is contended that the statutes make no provision for an allowance of alimony where divorce is granted by reason of the aggression of the wife, but only that the court may adjudge to her a share of the husband’s real or personal property, or both, as it deems just and reasonable, and that, therefore, there can be no appeal, as the statutes provide only for an appeal from an order granting or refusing alimony.

The chapter of'the Revised Statutes relating to divorce and alimony is substantially the same as the act of 1853, 51 O. L., 377. That act expressly, provided that there should be no appeal from a decree for divorce or for alimony, but that there might be an appeal in cases arising under the section providing that the wife may file a petition for an injunction to prevent her husband from disposing of his property. That act was construed in the case of Tappan v. Tappan, 6 Ohio St., 64, decided in 1856. It is there pointed out that it is expressly provided by the act that there shall be no appeal from decrees for divorce or alimony, and that there can be no appeal in such cases under the provisions of the civil code for the reason that the civil code excepts such cases from its provisions. In the opinion, Scott, J., suggests that it might be a proper subject of legislative consideration whether a review of that part of the decree which relates to alimony and the custody of children might not be permitted. Accordingly the act was amended on April 15, 1857 (54 O. L., 131), and an appeal was provided for from any final- judgment allowing alimony, to so much of the judgment or order as related to the alimony. It is provided by the statutes that the wife may file a petition for alimony alone, or that in case her husband files a petition for divorce she may file a cross-petition for alimony, and it is further provided that when a divorce is granted by reason of the * aggression of the husband that the wife shall be allowed such alimony out of her husband’s real and personal property as the court deems reasonable, having due regard to the property which came to him by marriage and the value of his real and personal estate at the time of his divorce, which alimony may be allowed to her in real or personal property, or both, or by decreeing to her such sum of money payable either in gross or installments, as the court deems just and equitable; and when the divorce is granted by reason of the aggression of the wife nothing is said about allowing her alimony, but the statute provides that “the court may adjudge to her such share of the husband’s real or 'personal property, or both, as it deems just and reasonable.” Section 5706, Revised Statutes, reads as follows: “No appeal shall be allowed from'any judgment or ordér'of the court of common pleas under this chapter, except from an order dismissing the petition without final hearing, or from a final order or judgment granting or refusing alimony, or in cases under section fifty-seven hundred and five; when judgment is rendered for both divorce and alimony, the appeal shall apply only to so much of the judgment as relates to the alimony; and when an appeal is taken by the wife, she shall not be required to give bond.” And the contention here is, as already stated, that this section does not authorize an appeal for the reason that the divorce was granted by reason of the wife’s aggression and that in such cases the statute does not provide for alimony, but only for a share of the husband’s real or personal property, and that within the meaning of this section there was no refusal of alimony. The injustice in many cases in not allowing the wife anything in the way of alimony, when the divorce is granted by reason of her aggression, has been pointed out in many cases. The property that the husband has may have been hers before marriage, or she may have contributed as much as he to its acquisition, and in many cases it would not be right that she should be turned away empty handed, merely because she can no longer live with her husband. And in some states such a division of the property has been decreed as alimony even in such cases, and it is for such reason that our statute provides that the court may adjudge her a share of the property. It is in reality an allowance of alimony or in lieu of alimony, and in view of the suggestion of the court made in the case in 6-Ohio State, above referred to, and of the subsequent legislation we -think the legislature must have contemplated that such share of the.property was alimony, and consequently that it is included in the word “alimony” where that word' is used in Section 5706 providing for an appeal. No reason occurs ’to us, and none is suggested in the. statutes, or in the cases, why a distinction should be made as to an appeal between an allowance of alimony, properly so called, and an order for a division of the property, and we think the circuit court was in error in dismissing the appeal.

The right to appeal was not raised in Hassaurek v. Markbreit, Admr., 68 Ohio St., 554.

Judgment reversed.

Crew, Spear, Davis, Si-iauck and Price, JJ., concur.