The Birmingham age-herald., 1909-06-27

to the manufacturers right to fix his own price on his own manufactured goods. Among other cases he cited the case of Park & Sons of Louisville, with refer ence to their cutting the price on Peruna. Anybody can buy from manufaet- urers," said MT. Cabaniss, providing they comply with the terms of the man. ufacturer, who has the lawful privilege of fixing prices on his own trade-marked goods. This concession to the manufact- urer Is simply allowing him to do what he will with his own It is clearly legal for wholesaler to sign an agreement to maintain prices fixed by the manufact- urer, as is shown in the case of Cote vs. Murphy, from which the attorney read extracts setting forth his claim. MT. Cabaniss read extracts from the decision of a Kentucky court having ref erence to a case In which wholesalers were involved and in which it was ruled that 1t was not unlawful for a manu- facturer to fix prices on his own goods. Addressing the court further, MT. Caba- miss said:
 No Ground for Chage.
 "As long as there is no fraud intimida- ton, molestation or interference with commerce there is absolutely no ground for charge of conspiracy, is shown by decisions of the higher courts, and under these authorities 1t was clearly permissible for the southern wholesale grocers to combine together and agree that they would not buy from manu- lecturers who sold indiscriminately to wholesalers and retailers alike just as long as there was no threat or intimida- tion on the part of the wholesaler. They had the right to furnish lists to their members and to the manufacturers There was nothing of the element of fraud, intimidation or coercion about these lists, and I1nHAr Ia md ha efa ta laws there is certainly nothing illegal about this purpose of the association.
 Tt is incumbent upon the plaintiff In this case to establish his damages. Spec ulative damages arc not recoverable or even probable profits are too remote to be recoverable in an action for damages. We submit that the plaintiff in this case has introduced no yardstick by which the jury can measure the extent of the dam age to his business. 1t was a new enter prise and the profits that might have been realized are speculative, purely and simply"
 Turning then to address the Jury, MT. Cabaniss said in part:
 Legal Damage.
 This plaintiff has come into court and has charged that the defendant has been guilty as an individual and as a member of an association of wrongs against him, III tfaI MT. NdnltOOSe prevented nm rom purchasing goods. And now you are con fined in your inquiries as to whether or not the plaintiff has sustained any legal damage.
 'The defendant says he has done no act which was legally injurious to the plain tiff and if injury has resulted that 1t was not legal injury or damage because if he did a thing which the law gives him the right to do, then the plaintiff sus- tained no legal damage. This plaintiff ayers that his name was left off certain green book a guide to the wholesalers. Now, did the defendant have the right to withhold the plaintiffs name from this book? We say he did because the South ern Wholesale Grocers' association is an organization permissible and legal under the law of the land"
 Mr. Cabaniss then went into discuss sion of the plan along which MT. Clabaugh intended to conduct his business After a few remarks he said:
 This plaintiff started in to do whole sale grocery business in Birmingham on a cash basis with a capital stock of about 5000 He took into partnership with him MT. Walters and MT. Crowe, who put up the capital It was one of the old /'r stances. gentlemen, where one map &I up the capital and the other the eS &- ence. and nine of every 10 like cases fin-