(248 S.W.) fact. Instruction on credibility not objectionable as telling jury to disregard witness' testimony if he testified falsely as to material fact. fixed stumpage prices had been released from, wholly for the jury, and it is an invasion of the vendor's lien retained in the deed. At their province to tell them that it may disrethe time Briney purchased the logs from gard a witness' entire testimony when they beMullinix and during the time he manufac-lieve he has testified falsely as to a material tured the lumber, no forfeiture was declared by Burr and Poole. On the contrary, after 2. Criminal law 757(7) default in the payment of the purchase money, they made continuous efforts to collect same. They permitted Briney to manufacture the down logs, which he had pur- An instruction on credibility of witnesses chased from Mullinix, into lumber for appel- that if any witness has willfully sworn falsely lant. We think Burr and Poole clearly esto any material facts to disregard his whole topped, by this conduct, from asserting a testimony "if you believe it to be false, or belien upon the down logs for which it had lieve that part which you think true, and disbelieve that part which you regard to be false," been paid according to stumpage prices. Ap-cannot be criticized as telling the jury that if pellant acquired the right to the possession they find that any witness has willfully sworn of the lumber, upon which it had made ad- falsely to any material fact they may disrevances, from Briney. It was therefore un-gard all the testimony of such witness. necessary for appellant to purchase the pretended claim from Burr and Poole to the lumber in order to get possession thereof. [4, 5] Appellant also contends that the court erred in stating the account between it and Briney. The alleged error consists in the fact, first, that the court made no allowance to appellant on account of there being more than 20 per cent. of No. 2 common, in the lot of lumber. The record fails to show that appellant sustained any damage on this account; second, that the court charged appellant $15 per thousand for No. 3 lumber. The contract did not specify any price for No. 3 lumber. Testimony adduced was conflicting as to the value of that grade of lumber, and the court's finding that it was worth $15 per thousand is not contrary to the clear preponderance of the evidence. [6, 7] Appellant's last contention is that the court erred in dismissing his cross-bill against George A. Booser, George A. Burr, and W. O. Poole. The record does not show that Booser had any interest in the litigation, and he disclaimed any. The timber deed procured by appellant from Burr and Poole to the lumber in question was a quitclaim deed. It is true, it contained an agreement to defend all suits which might be brought by Mullinix, or his assignees, for the purpose of defeating title to the timber conveyed. The expense of defending the suit was not made an issue in the case. The cross-bill against all three of the parties was properly dismissed. No error appearing, the decree is affirmed. ROBERTS v. STATE. (No. 202.) (Supreme Court of Arkansas. March 5, 1923.) 1. Criminal law 757(7)—Instruction to disregard testimony of witness testifying falsely as to one material fact held to invade jury's province. Appeal from Circuit Court, Sebastian County; John Brizzolara, Judge. Jack Roberts was convicted of selling inAftoxicating liquors, and he appeals. firmed. Cravens & Cravens, of Ft. Smith, for appellant. J. S. Utley, Atty. Gen., and Elbert Godwin and W. T. Hammock, Asst. Attys. Gen., for the State. HART, J. Jack Roberts prosecutes this appeal to reverse a judgment of conviction against him for the crime of selling intoxicating liquors in the Ft. Smith district of Sebastian county, Ark., on the 15th day of July, 1922. His only assignment of error is that the court erred in giving instruction No. 2, which is as follows: "You are the sole judges of the credibility of the witnesses, and the weight that should be given to their testimony. It is your duty to reconcile the statements of these different witnesses, so as to believe as much of this testimony as you can; but if you cannot do so on account of contradictions, then you have the right to believe the witnesses whom you think the most worthy of credit, and disbelieve the witnesses whom you believe from the evidence to be the least worthy of credit. And if you find any witnesses have willfully sworn falsely to any material facts in this case, you may disregard their whole testimony if you believe it to be false, or believe that part which you think true, and disbelieve that part which you regard to be false. And in weighing a witness' testimony you may take into consideration his canthing he testifies, the reasonableness or unreador or lack of candor, his knowledge about the sonableness of his testimony, and his interest, if any be shown, in the result of your verdict." Counsel for the defendant claim that the The credibility of a witness who testifies instruction is open to the objection that it falsely as to one or more material facts is tells the jury that if it finds that any wit For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes viding that board of improvement district shall appoint collector therefor not repealed by later act. ness has willfully sworn falsely to any ma- [2. Municipal corporations 124(1)—Act proterial fact in issue, it may disregard all the evidence of such witness if it sees fit to do so and rely upon the decision of Mangrum v. State (Ark.) 245 S. W. 816, and cases cited for a reversal of the judgment. We do not think that the instruction is of similar import to any of the instructions referred to in those cases. While we do not approve the form of the instruction, we do hold that it is free from the criticism of the instructions in the cases cited. [1] The object of all testimony is to establish the truth, and the jury is the judge of the credit to be given to the witnesses. The true rule is that the credibility of a witness who knowingly testifies falsely as to one or more material facts is wholly a matter for the jury. It may believe or disbelieve his testimony as to other facts, according as it deems such testimony worthy or unworthy of belief. Hence it is an invasion of the province of the jury to tell it that it may disregard the entire testimony of a witness whom it may believe to have testified falsely as to a material fact. Crawford & Moses' Dig. § 5702, providing for the appointment of collectors of improveprovements of all municipalities except the ciment districts by the respective boards of imties of Little Rock and Pine Bluff was not directly repealed or annulled by Acts 1901, p. 264 (Crawford & Moses' Dig. § 5669) providing that the city clerk shall deliver to the "city" collector a copy of assessments of benefits and warrants for collection, there being no reference to section 5702 but reference being made to Sandels and Hill's Digest, § 5337, which relates to the method of certifying the assessments to the city clerk, and the provision for certifying the assessment merely prescribes a form of warrant in which there occurred a clerical error with respect to certifying to the city collector instead of the collector of the improvement district. 3. Statutes 158-Repeals by implication not favored. Repeals by implication are not favored. 4. Municipal corporations 173(3)-City col. lector held not to be "collector for improvement districts" as regards liability on official bond. [2] The present instruction is not open to that criticism, because it tells the jury that if it believes any witness has testified falsely In view of Crawford & Moses' Dig., § 5702, to a material fact it may disregard his whole providing for the election of collectors of imtestimony if it believes it to be false, or it provement districts by the respective boards of may believe that part which it thinks true the cities of Little Rock and Pine Bluff, the improvements in all municipalities except in and disbelieve that part which it regards clerk and the city collector of North Little false. By this the court meant to tell the Rock was not collector of improvement disjury that if it found a witness to have will-tricts in such city, and bond given for faithful fully testified falsely on a material point, it performance of his duties to the city did not might disregard his whole testimony if it cover a defalcation of funds belonging to imbelieved the whole of it to be false. provement districts collected by him. Therefore the instruction was technically correct, and an instruction in substantially the same language has been recently approved in the case of Bryant v. State (Ark.) 247 S. W. 56. Appeal from Pulaski Chancery Court, Jno. E. Martineau, Chancellor. Action by the City of North Little Rock against the Etna Casualty & Surety Com It follows that the judgment will be af- pany and others. From decree rendered, defirmed. ÆETNA CASUALTY & SURETY CO. v. CITY 1. Municipal corporations 173(1)—On_col- Where funds collected by a defaulting city collector from the city and from improvement districts were jointly deposited in his name as collector, and it was impossible to show from what source the funds came, further than that they were collections for the benefit of the city and the districts, to determine the shortage to each, it was proper to divide the joint fund pro rata, in accordance with the amounts due to each. fendant named appeals, and plaintiff files a cross-appeal. Reversed and dismissed as to defendants not named, and decree entered for plaintiff against defendant named. Roscoe R. Lynn, of Little Rock, for appellant. J. F. Wills, of North Little Rock, and Rose, Hemingway, Cantrell & Loughborough, of Little Rock, for appellee. McCULLOCH, C. J. R. W. Miller was, in April, 1920, elected to the office of city clerk and city collector of North Little Rock (a city of the first class), and in accordance with an ordinance he executed his official bond to the city in the sum of $5,000 with appellant as surety thereon, conditioned that he should "faithfully discharge and perform the duties of his office, and at the expiration of his term of office shall render unto his successor in of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (248 S.W.) fice a correct account of all sums of money, | hereinbefore stated, and it was also proved books, goods, valuables, and other property, as that the funds collected by Miller from the it comes into his custody, as such clerk and col- city and districts were jointly deposited in lector of said city of North Little Rock, Ar- bank in his name as collector. It was imkansas, and shall pay and deliver to his suc- possible to show from what particular source cessor in office, or any other person authorized these funds came, further than they were colto receive the same, all balances, sums of money, books, goods, valuables and other property lections for the benefit of the city and the which shall be in his hands and due by him." districts. There is no way, from the testimony, to separate the funds, and, it being shown to be a joint fund, it can only be divided pro rata in accordance with the amounts due by Miller to each. Miller resigned in April, 1921, and it was found that he was short in his accounts to the city and also to three separate local improvement districts for which he had In the recent decision of this court in collected funds. According to the audit of Miller v. State (Ark.) 243 S. W. 958, which Miller's account, which has been found to was a criminal prosecution against R. W. be correct, he owed the city of North Little Miller for embezzling funds of the city of Rock $5,531.63, and also owed the three im- North Little Rock, we decided, under the provement districts, in the aggregate, the same proof as is involved in this case, that sum of $6,734.37, and he had in a bank, to the funds belonged to the city and the imhis credit as collector, the sum of $3,843.61. provement districts jointly, to be credited pro This action was instituted in the chan-rata on the balance due the city and the cery court of Pulaski county by the city of North Little Rock against appellant, to reeover the amount on the bond. In the complaint, the facts were set forth concerning the amount of funds on hand in bank to the credit of the collector, and an accounting was asked as between the city and the improvement districts concerning the application of these funds. The improvement districts were joined as defendants in the action, and each filed a cross-complaint asking for recovery on the bond of the respective pro rata of the liability to each of the districts. improvement districts. We think that the chancery court was therefore correct in ascertaining the amount of shortage in Miller's accounts with the city and the several improvement districts. [2] The principal question in the case, however, is whether or not the bond protects the improvement districts as well as the city so as to permit the improvement districts to share in the recovery. The ordinances of the city of North Little Rock provide that the city collector shall give bond in the sum of $5,000, conditioned that he will account for and pay all funds coming into his hands which belong to the city or any improvement districts within the city; but the bond in this case was executed to the city alone and, unless the city collector is, under the statutes of this state, constituted as the collector of improvement districts in a city of the first class, the bond does not afford indemnity to the districts for moneys receiv The chancery court decided that each of the improvement districts was entitled to protion under the bond jointly with the city of North Little Rock and to share in the recovery pro rata according to their respective amounts due from Miller, the principal in the bond. The court in its decree credited on Miller's account with the city and each of the improvement districts a pro rata part of the fund in bank, and, after thus ascertained by the city collector. This phase of the ing the net amount of Miller's shortage with each party, rendered a decree against appellant for a recovery by the city and each of the improvement districts of their pro rata part of the liability under the bond. Under this decree the recovery against appellant was as follows: case, therefore, comes down to the question whether or not the statutes of this state constitute the city collector as the collector of local improvement districts. Our laws governing the organization of improvement districts and providing for the procedure in their operation began with the statute enacted by the General Assembly in the year 1881. Acts of 1881, p. 161, Mansfield's Digest, § 825 et seq.; Sandels & Hill's Digest, § 5321 et seq. A section of that statute (Sandels & Hill's Digest, § 5360) provided that the board of improvement of local improvement districts should appoint the collector and treasurer of the district, but that section was amended by Act April 19, 1895 (Acts of 1895, p. 161), so as to provide that in cities of the first class the city collectors should collect the improvement district assessments. The last-mentioned statute was again amended by Act February 11, 1897 (Acts of 1897, p. 23), re-enacting the old statute to the effect that the collector and treas urer of local improvement districts should be Hill's Digest, the statute provided that asappointed by the board of improvement, but sessments for local improvements should be providing that the cities of Little Rock and according to valuation as appraised for genPine Bluff should have the power by ordi-eral taxation purposes, and that section pronance to make the city collector ex officio vided that, immediately after the passage collector of improvement districts. The last- of the ordinance authorizing the improvementioned statute has been brought forward ment, the city clerk should procure, at the by subsequent digesters, and it appears in expense of the district, a copy of the last Crawford & Moses' Digest as section 5702. assessment made by the county assessor and It is contended on behalf of counsel for deliver the same to the collector of the imthe improvement districts that this statute provement district with his warrant attached was amended by Act May 3, 1901 (Acts of directing the collection of the assessments. 1901, p. 264), so as to provide that in all The manifest purpose of the amendment of cities the city collector shall be the collector | section 5337 was to give further time for the for the improvement districts. The section certification of the list of assessments, givof that statute which it is contended amends ing 40 days after the passage of the ordiAct 1897, supra, reads as follows: nance, and also providing that there should be certified a list of assessments as apprais "Sec. 7. That section 5337 of said digested by the assessors of the district instead of [Sandels & Hill's] be amended so as to read as follows: "That within forty days after the passage of said ordinance, unless the time be extended by the city or town council, the city clerk, or town recorder shall deliver to the city collector à copy of said assessment of benefits containing a description of said blocks, lots and parcels of land in said district, and the amount assessed on each, duly extended against each lot, block or parcel of land, and shall deliver it with his warrant attached thereto to the city or town collector, which warrant may be in the following form: "State of Arkansas, City (or Town) of SS.: "To the Collector of said City (or Town) of : "You are hereby commanded to collect from the owners of real property described in the annexed copy of Ordinance No., the assessments on the same and as extended thereon for the current year and to pay to the treasurer of local improvement district No. city (or town) within sixty days from this date. of said a list of valuation made to the county assessor as required under the former statute. That part of the section which prescribes the form of the certificate was a mere formula and nothing more, and it cannot be presumed that the lawmakers intended in this incidental way to repeal or amend an important feature of the former statute. If such had been the intention, the lawmakers would doubtless have adopted more direct language expressing that intention. As an indication that such a change was not in the minds of the framers of the statute in prescribing the formula for certifying the assessments, it was provided that the warrant should be directed to the collector of the city or town, whereas there is no such office as collector of an unincorporated town. The statute does not provide for any such office and that office pertains only to cities. If the statute in question is construed to repeal the former statute, then there is no provision at all for a collector for local improve "Witness my hand and seal of office on this ment districts in incorporated towns. day of 19-. "And like writs shall be issued annually until said local assessment shall be fully paid." We are constrained, therefore, to hold that Act 1901, supra, was not intended to repeal any former statute, but that the provision for certifying the assessments merely prescribed a form in which there occurred a clerical error with respect to certifying to the city collector instead of to the collector of the improvement district. [3] That section has also been brought forward in Crawford & Moses' Digest as section 5669. There is no direct repeal by this statute (Act 1901) of the former statute (1897) authorizing the board of improvement to ap- [4] We hold, in accordance with this view, point the collectors. If the repeal or amend- that Act 1897 (Crawford & Moses' Digest, § ment has been accomplished, it must be by 5702) is still in force and provides for the implication only, and such repeals are not election of collectors of improvement districts favored. That principle is elemental and by the respective boards of improvement in needs no citation of authorities to support it. all municipalities except in the city of Little This court has often announced that rule of Rock and in the city of Pine Bluff. Miller construction. There is no reference made in was, therefore, not a collector of the imthis statute to Act 1897, but, on the contra-provement districts de jure, and the bond ry, the section under the consideration ex- did not cover his defalcations as to funds repressly refers to another statute, viz. section 5337 of Sandels & Hill's Digest, which relates merely to the method of certifying the assessment by the city clerk. At the time of the enactment of section 5337, Sandels & ceived by him which belonged to the improvement districts. Having received the funds, however, for the benefit of the improvement districts, he became, in fact, a bailee and was subject to prosecution for embezzle (248 S.W.) ment, as we announced in the former opin-livered to the consignee without collecting the ion in the criminal case against Miller, but charges. the sureties on his official bond are not liable for the defalcation, for the reason, as before stated, that Miller was not, in law, the authorized collector of the districts. 5. Carriers 194-Provision owner or consignee shall pay freight does not relieve consignor. A provision in an interstate bill of lading It follows, therefore, that the decree was that the owner or consignee shall pay the wrong in awarding any sum to the improve- freight does not relieve the consignor's liability ment districts, but the bond protects the for the freight, but only recognizes the right of city of North Little Rock to the extent of the carrier to hold the shipment until its lien Miller's defalcation of said funds. After cred- for charges is discharged, and that lien can iting Miller's account with the city with the be waived by the carrier. pro rata of the funds in bank, there was a de- 6. Carriers falcation of $3,703.04, and the city is entitled to a decree against the surety on the bond for that sum. The decree is therefore reversed and dismissed as to the improvement districts, and a decree will be entered here in favor of the city of North Little Rock for the sum mentioned above, to which it is entitled. This decree will be entered here as of the date of the decree below, so as to bear interest from that date. It is so ordered. 194-Consignee is not liable for freight on goods delivered to his assignee. The consignee of an interstate shipment of goods, who had made no contract with the carrier for the payment of the freight, and who assigned his interest in the goods before their delivery to him, and directed the delivery to the assignee which was made by the carrier, is not liable for the freight charges. 7. Carriers 196-Laches does not bar collection of freight from consignor. The right of an interstate carrier to recover the freight charges from the consignor is a legal demand which can be barred only by the lapse of the period of limitations, and laches is no defense thereto. CLEVELAND, C., C. & St. L. RY. Co. v. 8. Carriers 194-Carrier need not notify consignor of failure to collect freight. An interstate carrier which agreed to col(Supreme Court of Tennessee. Feb. 2, 1923.)lect the freight from the consignee is not re 2. Carriers 194-Shipper's liability for freight cannot be released by contract. The shipper's primary liability for payment of interstate freight charges, based on the fact that he contracted for the shipment, cannot be released by express contract with the carrier and agreement to look to the consignee. 3. Carriers 194-Consignor is primarily liable for freight. The consignor with whom the contract to ship is made is primarily liable for the freight, and his liability can only be discharged by a full payment either by the consignor or consignee. 4. Carriers 194-Provision for delivery to consignee on payment of freight does not relieve consignor's liability. A provision in an interstate bill of lading that the goods shipped are to be delivered to the consignee on his paying the freight charges does not relieve the consignor's liability for payment of the charges, if the goods are de quired to give the consignor notice of its failure to collect the freight in order to enforce the consignor's primary liability for it. 9. Carriers 194-Assignment by consignee in whom title was vested does not affect consignor's liability for freight. The fact that the consignee, in whom title to an interstate shipment of coal was vested assigned it to another, to whom it was delivered by the carrier without collection of the freight charges, does not alter the liability of the consignor for the freight. 10. Bankruptcy 363-Filing claim in bankruptcy against consignee for freight does not waive right against consignor. The fact that a carrier, which had delivered an interstate shipment to the assignee of the consignee without requiring payment of the freight charges as directed by the bill of lading. thereafter filed its claim for such freight charges against the trustee in bankruptcy of the assignee and recovered more than half of such charges, does not amount to a waiver of its right to collect the balance of the charges from the consignor, even if it would be held to its election if the assignee were still insolvent. Appeal from Chancery Court, Knox County; Charles Hays Brown, Chancellor. Suit by the Cleveland, Cincinnati, Chicago & St. Louis Railway Company against the Southern Coal & Coke Company. Decree for complainant was reversed by the Court of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |