Evening capital news. (Boise, Idaho) 1901-1927, 1917-12-07
CLAIMS FRAUD.
PRACTICED IN
HERCULES SALE.

VIVA VA S@@4SAsS@S
formed Action in Progress
Plaintiff Charges E. r.
Day With Misrepresenta-
tion-$37O,O 900 at Stake.
One Of the most sensational mining
cases that has come before the federal
court is now on trial at Occur dAlene
In the suit Instituted by Mrs. Ma
thelde Gardener widow of Damian
Gardener, pioneer business man of
Burke, against Eugene r. Day and
others, wherein the charge is made
that fraud was practiced to induce the
plaintiff to dispose of her one-six-
tenth interest in the Hercules mine
for a price much less than 1T was
worth. Mrs. Gardener seeks to have
her interest in the mine returned 10
her. The suit was originally filed with
the district court in this city
GALAXY LEGAL LIGHTS.
Judge Frank S. Dietrich is presiding
at the trial which opened this week.
The interest of Mrs. Gardener in the
mine was sold for 100000. she
contends it is worth many times tnat
much. The case Is attracting VIDE
spread interest because Of the nature
of the charges involved. galaxy or
legal lights represents both sides. Az
torneys prosecuting the suit for Mrs.
Gardener are Frank Graves Of Spo-
kane. Kiser and Graves of Spokane,
Judge Morgan O'Brien of New YORK,
md Joseph r. Wilson of Philadelphia
The defense is represented by Z. w.
Boal and John w. Wourms of Wallace
James F.. Babb of Lewiston, John r.
GRAY of Occur d Alene and l. N Snli'h.
HOW PROPERTY CONVEYED.
In his opening statement for the de-
PENDANT Mr.. Graves stated that MIS-
Gardener and Der husband IN the carry
DAYS had lived for some years at BURKE,
where he ran small fruit store anu
his wife did sewing and gave lessons
In French. For six years before ms
death in the Canary islands, Feb. 20
1918. they lived In Spain. Cardoner
a;ed intestate. The will was probateo
In,v % 1915. and the daughter mace
Administrators She waived the rlght
and netitioned for the appointment 81
eugene r. Day as administrators ana
no entered upon his duties in APRIL
,o,s An order of distribution was en-
tered and the estate in Idaho was ois-
tributed Oct. II, 1916. On NOV '"e
order discharging Mr.. Day was en-
tered. Mrs. Gardener was the hei'
and entitled to all the property.
OntOct. rs, 1916, she signed docu-
nent authorizing Harry Allen to sell
her one sixteenth interest In the Her.
cules mine on a basis of %,00oooo to'ai
value. one-sixteenth of the Hercules
cash in hand, 100000; and real estate
in Burke all totaling 100000, on when
t5o 600 was paid down. The deed was
nloced in escrow at the Old National
hank Spokarfe. f. r. Day gave MIS-
Gardener two checks, for $4,000 ana
,5o ooo respectively. The deed was
made out to Eleanor Day Boyce al
gbouyb the negotiations had been con-
s,,o,ed in the name of Eugene r. Day,
rhe Gardeners knew little of the Vaiue
Of the Hercules mine, they ahese'
In January. 1917, Mrs. Gardener
made demand for the recession on Wv
.ontract and rendered the 100000 te
Mr.. Day. He refused to resclnd OF ao'
,ant navment and the complaint was
filed by Mrs. Gardener MT. ura'.'
made three distinct charges as lo''
lows:
First-Actual fraud has been perpe'
trated against Mrs. Gardener, VINO nae
M knowledge Of the true value of thu
mine: Allen made representations U
her that the mine was IN DANGER O
running out; that it had paid no diVi
dends during a period OF hish meta
prices: that the Days were bucking TN
Guggerheims and were in danger o
losing everything; that relatives o
Gardener in Spain were threatenln'
lawsuits. Mr.. Graves declared Eugen'
pay had withheld from Mrs. Cardone
information essential to an estimate
the true value of the mine. Mrs. Car
doner understood Allen represente'
Day. Allen took the $4,000 check as nj,
commission, Mrs. Gardeners first IN
timation that he was acting as ne
agent. The mental condition OF TN
pIaintiff at the time was a factor MI
; Graves commended.
Secondary being administrator
the Gardener estate and Mrs. Car
doner the only heir, a fiduciary reia
ion existed and Day failed to fulfill tn
nbIieations that relationship incurred
Third-As manager Of the mine 10
the partnership. Day was agent OF a.
the principals in that partnership an
was bound by duties and ooiigation
which he failed to live unsso. Conse
ouently the transaction was assaiiapi'
Graves said, and should be rescindee
The inadequacy Of the coPsideratio
given Mrs. Gardener was also empha
sized.