The Bourbon news. [volume] (Paris, Ky.) 1895-19??, 1914-03-03
Judge BenfOR'S Opinion in Case Of
D. 5. Gay, Et Al, PItfS., vs..
N. f. BreRt, Diff.

below is publlShed the decision or
Judge j. III. Benton, Judge of Clark
County Circuit Court, as delivered at
the January term, in the matter of ID.
S. Gay ct al, Plaintiffs, VS.. N. Ford
Brent, Defendant.
As stated by the Judge the decision
as rendered was only upon the trust
statutes, 'that no real issue of fact is
presented. The real issue is one Of
| law"
The plaintiffs will carry the case back
to the Court of Appeals.
AS this case is one of general inter-
est we give the opinion in full:
Clark Circuit Court.
D. S. Gay Et AL, Plaintiffs
VS..
N. Ford Brent. Defendant.
OPINION AND JUDGMENT.
Since this case was before the Court
| of Appeals and that tribunal held
| (l49 KY, 615) that the answer and
! amended answerfpresented good de-
Tense to the plaintiffs claim, there
| have been two jury trials of the case,
both juries failing to agree npon
verdict.
On the first trial, Influenced largely
by what the trial judge conceived to be
the views of the Court of Appeals, as
expressed in Merchants Ice & Cold
Storage Co. VS.. Rohrman, 1873 KY, $50,
he instructed the jury to find for the
defendant, eff they 1.-THE jury) believ-
ed from the evidence that the plaintiffs,
Gay, E. F. Spears & Sons, and Wilson,
formed pool, trust, combine, confed-
Grafton or agreement for the purpose
of controlling the market and fixing
and regulating the price of bluegrass
seed, and that plaintiffs bought the car
load of seed in question in furtherance
OF, and as part of, such plan, pool,
trust. combine, confederation or agree
ment, if any, to control the market, and
nix and regulate the price of bluegrass
seed"
This instruction presented the view
of the law then con- ended for by de-
PENDANTS counsel, while counsel for the
plaintiffs urged that the instruction
should have embraced the idea, that
before the jury could find for the de-
PENDANT, they must believe that the
purpose of the plaintiffs was to enhance
the price of bluegrass seed beyond its
: real value.
Before the case was again tried, the
7 Court of Appeals in the case OF
! Gathright VS.. H. M. Byllesby & Co..
I 154 KY, LOG, made this pronounce
ment: Under the law of Kentucky
as it exists to-day there is no prohibi
ton against the formation of trusts,
or monopolies, but that they are liza
BILE to a fine if they sell their pro
ducts above or below their real value
such real value to be fixed by jury
} The law has so stood since 1906, with
out change by the Legislature, as
must be accepted as the public policy
of the State upon the subject" The
Court added: when properly con
strued and applied, we do not find
/. anything in Sites VS.. Norton, 125
I KY, 672 or in Merchants Ice & Colo
e Storage Co. VS.. Bohrman, 1873 KY, $50
1 and kindred cases relied upon by the
. plaintiffs, that can take this case Oul
. of the operation of the rule laid down
: by the act of 1906" That view con
formed to what the trial judge haC
. conceived to be the true rule, and or
IL the second trial of tne case, the jury
| were instructed to find for the defend
ant eff they (the jury believed from
:. the evidence that the plaintiffs formed
3 a pool. trust, combine, confederation
Z or agreement for the purpose of con
s trolling the market and fixing thu
price of blue grass seed above or be
8 low it's real value, and that the plain
q tiffs bought the car load of seed IL
3 question in furtherance OF, or as
& part of, such plan, pool, trust, com
bine, confederation or agreement, l
any, to control the market and to Il!
the price of blue grass seed above o.
below it's real value"
4 Theburden of the proof to reliev,
himself from liability was, on botl
trials. by those instructions, places
/ upon the defendant. He failed u
carry that burden, for he failed to ge
q verdict from either jury. That fac
alone would have great weight in IN
Iuencing the trial judge, now trle
! of the facts, to hold that the evidenc
does not sustain the defense present
ed by the instructions above quoted.
It may be fairly found from the evi
j dence, that the purpose OF the plain
8 tiffs was not to enhance the price o
y blue grass seed beyond it's real value
but to create a Stap>e market Tor TIL
product. and enable the producers I
4 realize a fair and reasonable price 10
- il. That is the view that the trla
Judge is inclined to accept as wa
ranted by the evidence.
In the case of the international Ha
j yester Company of America VS.. Con
monwealth, 1877 KY, 66S, the Court
Appeals saidi 1t is not true that
combinations of producers are lllega
" or even wrong or hurtful. Cooper
d ton is as essential in many kinds
business as is competition. In near
every business it is practiced, ana ha
been in some form or other since SOC
ETY. was organized. The leglslatlE
action was not aimed to prevent c
operation. 1t was aimed against m
nopoly. Therefore 1T is not enoug
under a prosecution under our sta
ute. to show that tnere has been
combination among producers OF the
. products or plants. Human nature
such that we must know the comDln
ton was intended to improve the
RI fairs of those entering into it. Ihe
v expected to make more money out
it than they made before. That
NJ