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the fulfillment of an obligation," it will constitute an equitable lien: 3 Pomeroy's Equity Jurisprudence, sec. 1237; Turner v. Watkins, 31 Ark. 429; Taliaferro v. Barnett, 37 Ark. 511; Bell v. Pelt, 51 Ark. 433, 14 Am. St. Rep. 57, 11 S. W. 684, 4 L. R. A. 247; Williams v. Cunningham, 52 Ark. 439, 12 S. W. 1072; Martin v. Schichtl, 60 Ark. 595, 31 S. W. 458; Ward v. Stark Bros., 91 Ark. 268, 121 S. W. 328.

We are of the opinion that the allegations of the complaint, with every reasonable inference to be drawn therefrom, set forth an indebtedness due by the defendant to the plaintiff, and that such indebtedness has matured; and that for the payment thereof he has an equitable lien upon the lot described in the complaint.

The chancellor therefore erred in sustaining the demurrer to the complaint.

The decree of the chancery court is reversed and this cause is remanded, with directions to overrule the demurrer to the complaint and for further proceedings.

Agreements Purporting to Liquidate Damages are discussed in the note to Stillwell v. Paepcke-Leicht Lumber Co., 108 Am. St. Rep. 46. As to When a Vendor's Lien Exists, see Finnell v. Finnell, 156 Cal. 589, 134 Am. St. Rep. 143, and authorities cited in the cross-reference note thereto.

As to What Constitutes an Equitable Mortgage, see the note to Hutzler Bros. v. Phillips, 4 Am. St. Rep. 696. An equitable mortgage ordinarily arises whenever a writing shows a clear agreement to make some particular property security for the debt or obligation mentioned therein: Dulaney v. Willis, 95 Va. 606, 64 Am. St. Rep. 815; Higgins v. Manson, 126 Cal. 467, 77 Am. St. Rep. 192; Thompson v. Grace, 91 Ark. 52, 134 Am. St. Rep. 52. Any agreement which shows an intention to create a lien is an equitable mortgage: Bell v. Pelt, 51 Ark. 433, 14 Am. St. Rep. 57.

STATE v. PEYTON.

[93 Ark. 406, 125 S. W. 416.]

RAPE.-It must be Alleged in an Indictment for rape that the act was committed "against the will" of the female. But the facts constituting the crime need not be charged in the precise words of the statute. (p. 94.)

RAPE Indictment "Against Her Will."-An indictment for rape which charges that the accused did "unlawfully" and "forcibly ravish and carnally know" a certain female, alleges that the act was done "against her will." (p. 95.)

H. L. Norwood, attorney general, and W. H. Rector, assistant attorney general, for the appellant.

407 McCULLOCH, C. J. The state appeals from a decision of the circuit court of Jefferson county sustaining a de

murrer to the following indictment (omitting caption): "The grand jury of Jefferson county, in the name and by the authority of the state of Arkansas, accuse Arthur Peyton of the crime of rape, committed as follows, to wit: The said Arthur Peyton, in the county and state aforesaid, on the seventh day of August, A. D. 1909, did then and there willfully, unlawfully, forcibly and feloniously make an assault on Laura Jones, and her, the said Laura Jones, did then and there feloniously and forcibly ravish and carnally know, against the peace and dignity of the state of Arkansas."

The objection urged against the indictment is that it does not contain an allegation that the act was committed against the will of the female. The crime of rape is defined by statute as "the carnal knowledge of a female forcibly and against her will" Kirby's Digest, sec. 2005.

In Beard v. State, 79 Ark. 293, 95 S. W. 995, 97 S. W. 667, 9 Ann. Cas. 409, the indictment was in about the same language, omitting an express allegation that the act was committed against the will of the female; and we held that it was a good indictment when questioned for the first time on appeal, as the words in the indictment necessarily involved a 408 charge that the act was committed against the will of the female. We declined to decide whether or not the indictment would be good on demurrer, though two of the judges, in a separate opinion, expressed the view that it was good. We now have to decide that question.

Of course, it must be alleged in an indictment for rape that the act was committed "against the will" of the female, for that is an essential element of the crime. But the facts constituting the crime need not be charged in the precise words of the statute. If words are used which convey the same meaning, so as to charge all the essential elements of the crime, it is sufficient. The Criminal Code of Practice provides that "the words used in a statute to define an offense need not be strictly pursued in an indictment, but other words conveying the same meaning may be used"; and that "the words used in an indictment must be construed according to their usual acceptation in common language, except words and phrases defined by law, which are to be construed according to their legal meaning": Kirby's Digest, secs. 2241, 2242. The code also contains the following provisions: "The indictment must contain: . . . . a statement of the acts constituting the offense, in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended": Kirby's Digest, sec. 2243. "The indictment is sufficient if it can be understood therefrom . . . . that the act or omission charged as the offense is stated with such a degree of certainty as to enable the court to pronounce judgment on conviction, according to the right of the

case": Kirby's Digest, sec. 2228. "No indictment is insufficient, nor can the trial, judgment or other proceeding thereon be affected by any defect which does not tend to the prejudice of the substantial rights of the defendant on the merits": Kirby's Digest, sec. 2229.

In the Beard case we said that an allegation of an unlawful assault necessarily implied an allegation that the act was done against the will of the assaulted female. In addition to this, we have in the indictment the word "ravish," which means "to seize" or "to snatch by force" (Webster), and the allegation that the act was done forcibly. The words "against her will" have the same meaning in the definition of the crime of rape as the words "without her consent," and proof that the act of sexual 409 intercourse was committed without the consent of the female, as when she was unconscious and could not consent, is sufficient to sustain an allegation that it was done against her will: Harvey v. State, 53 Ark. 425, 22 Am. St. Rep. 229, 14 S. W. 645; 1 Wharton on Criminal Law, sec. 556; Commonwealth v. Burke, 105 Mass. 376, 7 Am. Rep. 531. Now when we consider, in the ordinary acceptation of those words, the charge that the accused did "unlawfully" and "forcibly ravish and carnally know" the female, there is no escape from the conclusion that the act is alleged to have been done "against the will" of the female, or without her consent, which has the same meaning. Any other interpretation of those words would do violence to their plain meaning: Jackson v. State, 114 Ga. 861, 40 S. E. 989.

The judgment is therefore reversed and the cause remanded, with directions to overrule the demurrer, and for further proceedings under the indictment.

The Crime of Rape is the subject of a note to Smith v. State, 80 Am. Dec. 361. As to the sufficiency of the indictment in alleging "force" and "against the will," see Taylor v. State, 50 Tex. Cr. 362, 123 Am. St. Rep. 844; McGuff v. State, 88 Ala. 147, 16 Am. St. Rep. 25.

GAY OIL COMPANY v. ROACII.

[93 Ark. 454, 125 S. W. 122.]

SALE-Breach of Warranty-Rescission.-In the absence of an agreement to rescind, a contract of sale cannot be rescinded for a mere breach of warranty. (p. 97.)

fraud or

SALE.—A Warranty is an Undertaking Collateral to the express object of the contract, and in effect is an agreement to pay the damages sustained by reason of the article not being as represented. (p. 97.)

SALE-Breach of Warranty-Remedy of Buyer.-A buyer of oil under a contract which guarantees the barrels in which it is shipped against leakage cannot reject the oil because several barrels leaked. His remedy is to recoup or sue for damages. (p. 98.)

Moore, Smith & Moore and H. M. Trieber, for the appellant.

454 FRAUENTHAL, J. This was an action instituted by the Gay Oil Company, the plaintiff below, against N. B. Roach to recover the purchase price of sixty-four barrels of oil, which it alleged it sold to the defendant. The defendant alleged that he purchased the oil under a contract by which the plaintiff "guaranteed" the barrels in which the oil was to be shipped against leakage; that when the shipment arrived several of the barrels leaked, and that he on that account refused to accept the oil, and at once notified plaintiff of his rejection thereof.

The defendant was a merchant doing business at Mena, Arkansas, and the plaintiff was located at Little Rock, Arkansas. The defendant made a written order, directed to plaintiff, for sixty-four barrels of oil, and in said order was the following: "Guaranty against leakage." The order was accepted by the plaintiff, who delivered the sixty-four barrels of oil to a common carrier at Little Rock, consigned to the defendant at Mena. When the oil arrived at Mena, the defendant found that several of the barrels leaked. He notified the plaintiff of this leakage, and refused to remove the oil from the car. The defendant testified that several of the 455 barrels leaked, but did not state the number thereof or the extent of the leakage. There was some testimony that the barrels appeared to be in good shape, and that the car did not leak very much, and that there was no drip therefrom.

The lower court peremptorily directed the jury to return a verdict in favor of the defendant, which was done. The plaintiff prosecutes this appeal from the judgment entered upon that verdict.

The defendant executed a written order or contract for the purchase of sixty-four barrels of oil from plaintiff in which it was stated that there was a "guaranty against leakage." The rights of the parties under this contract of sale are determined by the nature and effect of this clause of "guaranty against leakage." In strict legal contemplation there is a difference between a "guaranty" and a "warranty." They are both collateral undertakings; but a guaranty is the assurance of the payment of a debt or the performance of a duty or contract by another person, while a warranty is an assurance of the title or quality of property. The two are often used interchangeably and with the same effect. The meaning of the word "guaranty" in this contract must be gathered from the context of the entire instrument and from the subject matter about which it treats; for this will more surely give the expression that meaning which will carry out the true intent of the parties. Considered in this way, it appears that the parties used the term "guaranty" synony

mously with warranty; and the clause in effect stated that the barrels in which the oil was shipped were warranted against leakage: 20 Cyc. 1403.

Ordinarily, a warranty is an agreement to be responsible for all. damages that arise from the falsity of the statement or assurance of a fact. But the statement or assurance is sometimes the condition upon which an executory sale is made, although it may be called a warranty. The general rule is that, in the absence of fraud or an agreement to rescind, a contract of sale cannot be rescinded for a mere breach of warranty. But where the stipulation is a condition, the performance of which is precedent to the completion of the sale, the purchaser is entitled to reject the article if such condition is not performed: 2 Mechem on Sales, sec. 816; Tiedeman on Sales, sec. 197; 24 Am. & Eng. Ency. of Law, 1109.

456 A warranty is an undertaking that is collateral to the express object of the contract, and is in effect an agreement to pay the damages sustained by reason of the article not being as stated or represented. A condition is one of the essential terms which identifies and describes the article, and for a nonconformity to such description the article may be rejected: Benjamin on Sales, sec. 1349.

If, therefore, the stipulation in the contract involved in this case relative to leakage was in effect a warranty, properly so called, then the defendant did not, upon the breach of such warranty, have the right to rescind the contract. His remedy, in such event, was to recoup or sue for the damages sustained by reason of such leakage. In that event the sale was absolute and not conditional, and the warranty was only an undertaking that was collateral to the sale. In the case of Thornton v. Wynn, 12 Wheat. 183, 6 L. ed. 595, it is said that "if the sale be absolute, and there be no subsequent agreement or consent of the vendor to take back the article, the contract remains open, and the vendee is put to his action upon the warranty, unless it be proved that the vendor knew of the unsoundness of the article and the vendee tendered a return of it within a reasonable time."

Where there is a contract for the sale of an article which is not at the time in existence or ascertained, or where there is a sale by sample, the agreement that such article shall be of a certain description or quality is not merely a warranty, but it is a condition upon the performance of which depends the completion of the contract of sale, and the sale does not become absolute until the article has been inspected and found to conform to the description of kind or quality. The existence in such case of the quality or kind of the article becomes essential to the identity of the article sold, and the purchaser cannot be required to accept and pay for an article which he in fact did not buy: 2 Mechem on Sales, sec. 1209; Tiedeman

Am. St. Rep., Vol. 137-7

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