The Birmingham age-herald., 1910-09-15
EFFORT MADE ID
 THROW CLABAUGH
 CASE FROM COURT Judge Grubb Will Rule on Vital Point in $150,O0O Dam-
 age Suit Today ATTORNEYS ARGUMENTS ARE VERY TECHNICAL Defense Claims That When $1O,0O0 Was Previously Paid Clabaugh Was Recompensed for All Dam-
 ages Sustained

The fate of the Hinton G. Cabaugh case against the Southern Wholesale Grocers' association hangs by a mere | thread and today Judge William I. Grubb may throw the case out of the federal court
 The decision expected will be based on the release published yesterday morning,
 which was signed by MT. Clabaugh when he recovered $10,000 from James A. Van l Hoose as a compromise judgment in the Jefferson county circuit court. | The point was made yesterday by the defense that the recovery of s10,0OO in that case was a full and complete settle ment of the cause of action, and that no other members of the association or the | association itself could be sued again After wranging over this point the greater part of yesterday no decision had been reached when Judge Grubb adjourned court last night. He an- nounced, however, that he wished to think over the matter, and would prob ably announce a decision this morning. The defense anticipates that the case | will be stricken from the docket, while | MT. Clabaugh and his counsel believe the case will continue until all the evidence | is introduced.
 Whether Costs Have Been Paid | The chief point which is now in con- | troversy seems to be whether the costs | in the former case have been paid either | by MT. Clabaugh or the association, or whether this with the $10,000 given MT. Clabaugh Is sufficient damages for the injury claimed to have been done him | by the alleged illegal combination. | Judge Grubb stated yesterday that the point was extremely technical, and one which required the most careful anay- | sis.
 | When court convenes this morning, | prior to the rendition of a decision by the court Walter K. McAdory, clerk of the Jefferson county circuit court will be placed on the stand to tell if the costs | have been paid in the former case. The defense believes If the costs have been paid, and they claim they have been paid, then the case should be dismissed. The plaintiff on the other hand main- tains that an express agreement was made that the Southern Wholesale Groc-
 
 agreement or compromise. and that the | introduction of the release is a breach | of faith and agreement. It Is stated that when MT. Clabaugh agreed to take $10,00o | and permit the docketing of a judgment with costs that 1t was expressly agreed | with MT. vanHoose that only those who | contributed to the fund raised would be released from any liability.
 When the federal court case was taken up last Monday an amendment to the complaint was filed, setting out that the | plaintiff desired to strike from the com plaint the individuals and elect to pro- | ceed against the association as a corpor- ation.
 Asks to Have Case Removed | Caruthers Ewing for the defense arose yesterday morning and requested that
 the case be removed from the docket by
 reason of the fact that any damage that
 may have been done MT. Clabaugh had
 been fully paid when s1o,OoO was given
 him by Mir vanHoose. This point, how
 ever, was incorporated in the pleadings
 of the defense. and forms the chief point
 upon which the defense Is wagng the | case.
 After reading the pleadings Judge l Grubb upon his own volition asked about | the payment made MT. Clabaugh anu
 from that moment for two hours the
 lawyers argued the points involved. The
 point was wrapped in perfect maze of
 technical phrases. many of which were
 lost to the various interested spectators
 Judge Grubb finally pointed out the cost
 question, and the court sent for the cir
 cult court file in the case.
 This carried a partial list of the costs
 paid, and the case rested on this point
 until a few moments before o'clock last night.
 | Read Letters to Jury l From the time court reconvened yes-
 tcrday afternoon until the adjournment
 was taken last night MT. Johnston and MT. Clabaugh were engaged in reading
 excerpts from letters sent by Mr. Van
 Hoose while president to various mem
 bers of the association. There were also
 read hundreds of letters from various
 manufacturers to MT. Clabaugh and to
 other persons and firms to the effect that
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