The Birmingham age-herald., 1910-09-16


 tion will be taken"
  against MT. vanHoose, and which I charge you are the some dap.ases he claims in this suit.
 Three-fOld Damages
 There is one other thing which I should have said to you. The act of congress under which this suit is brought provides not for the recovery of simple | damages, but three-fold damages. but the construction of that act by the su- preme court in some case, the Lowry case I believe 1t is, is to the effect that three-fold damages are only recovera ble when the plaintiff has a cause of action that would entitled the jury to award single damages. In other words the function of the jury is to only render a Judgment for actual damages and the court then triples them; but if there is nothing to go to the jury for single dam ages. then the court has no Jurisdiction to render any Judgment for triple dam ages and the same Is true as to the at torneys fees-I think they are merely an Incident to a Judgment for the plaintiff If no such judgment Is obtained, then there can be no allowance for attorneys fees, though the settlement was made after this suit was commenced Gives Notice of Appeal Immediately after the charge of Judge Grubb had been given Forney Johnston, attorney for the plaintiff, gave notice of an appeal to the cir cult court of appeals. A motion, how ever, for a new trial will be made within few days.
 When court convened yesterday y morning a motion was made by Gen eral Wright that a general charge be given the defendant in the case. Judge Grubb overruled this motion and stated that he would hear testimony from the clerk and MT. VanHoose. MT Howard of the circuit court was called and questioned. He said the case had been settled in his court from the informa- tion he possessed. When questioned specifically in regard to the payment of costs he stated that the costs had been paid with the exception of some very slight amount. General Wright at this juncture handed Mir. Howard the amount said to have been unpaid
 MT. Clabaugh was placed on the stand and cross-examined. He stated that the original amount paid was less than $10,000 and that he believed the costs had not been paid In full. However
 
 submit papers detailing just-how much had been paid.
 VanHOose Placed on stand
 James A. VanHoose, president of the association a few years ago, was placed on the stand He did not answer very many questions. He testified that the compromise had been made and that he held checks showing to the penny how much had been expended The checks were examinedsby Judge Grubb and the attorneys. The checks were those paid MT. Clabaugh for the set clement as well as some paid the cir cult court clerk for fees in the case.
 It was exactly 11:37 o'clock when Judge Grubb stated that the case had proceeded far enough. He then turned to the jury and began to speak to them in his usual low tones. He end ed by saying the case should be con- cluded by the jury returning a verdict for the plaintiff. This resulted and was signed by one of the jurymen as foreman.
 The court room was cleared of the association members and those inter ested in very short time. And with this there ended for the time being al least one of the most interesting cases that has ever developed In Birming- ham.
 Beginning of the Suit
 MT. Clabaugh was suing the Southern Wholesale Grocers' association for $780, O0O claiming that by reason of the asso- citation being an illegal one he was forced out of the wholesale grocery busi- ness. His complaint alleged that the as- sociation was a monopoly operated in restraint of trade and in strict violation of the Sherman anti-trust laws. He en- tered suit against James A. VanHoose, president of the association. in the cir cult court of Jefferson county some time ago. The jury did not agree upon the amount to be paid him as damages in that case and was discharged. An agree ment was reached later between the liti- gants that MT. VanHoose was to pay S1c,OO0 and costs. An agreement was signed exempting all the individuals named by Mir. vanHoose from further action Thfs agreement proved to he