The further contention is made that the petition should have alleged facts showing that plaintiff had exercised reasonable diligence to discover the fraud; in other words, should have alleged what efforts were made, what inquiries were instituted, to ascertain whether or not it had been defrauded. plaintiff had a right to rely, and did rely, on the representations of the defendants, naturally no inquiry would be made to ascertain the truth of the representations until some suspicion was aroused respecting the truth thereof. It was not necessary for plaintiff to plead facts showing diligence; nor was plaintiff required to negative the fact that the fraud might have been discovered earlier. The statute does not declare that the action may be maintained within two years after the fraud has been discovered, provided the plaintiff has used due diligence to discover the fraud. In this respect it differs materially from the first English statute (3 and 4 Wm. IV, c. 27, § 26), which permitted relief on the ground of fraud, and which enacted that the cause of action is "deemed to have accrued at and not before the time at which such fraud shall or with reasonable diligence might have been first known or discovered."

In Young v. Whittenhall, 15 Kan. 579, it was held that, when the petition shows the consummation of the fraud more than two years before the action is commenced, the plaintiff must further allege that he did not discover the fraud until within two years. The old equity practice required the circumstances under which the fraud was discovered to be stated in the bill, because the complainant was obliged to state a cause of action which appealed to the conscience of the chancellor; and whether or not the complainant was entitled to the relief demanded depended as much upon what his own conduct had been as upon that of the defendant. The rule in this state, at least, has no application to an action under the Code for damages for fraud. K. P. Rly. Co. v. McCormick, 20 Kan. 107; Ryan v. Leavenworth, A. & N. W. Ry. Co., 21 Kan. 365, 404. All that is necessary is for the plaintiff to allege as a fact that he did not discover the fraud until within two years before the action was commenced.

The defendant relies chiefly on the case of Wood v. Carpenter, 101 U. S. 135, 25 L. Ed. 807, where the contrary seems to be held. The court in that case construed an Indiana statute, which read: "If any person liable to an action shall conceal the fact from the knowledge of the person entitled thereto, the action may be commenced at any time within the period of limitation, after the discovery of the cause of action." Stat. Indiana, 2 Rev. 1876, p. 128. It was held that it is not sufficient to allege the fact of concealment and the discovery thereof by the plain

[2] In K. P. Rly. Co. v. McCormick, 20 Kan. 107, Justice Brewer, speaking for the court, in the opinion said: "The question is one of time, and not of conduct. The statute requires in a petition a concise statement of the facts constituting the cause of action; but the manner in which the fraud has been discovered is no part of or element in such cause of action. The cause of action is in the wrong done; and even the time of discovery is a matter affecting solely the statute of limitations, and that státute has regard to the time, and not to the manner of discovery." Page 111 of 20 Kan. In the syllabus of that case, it was ruled: "Whatever may have been the old equity practice, under the Code, in an action for relief on the ground of fraud, the circumstances under which the fraud was discovered do not constitute any part of the cause of action, and need not be stated in the petition, even where a discovery must be alleged to avoid the apparent bar of the statute of limitations." Syl. par. 2.

The same construction was given by the Ohio Supreme Court to a statute worded substantially like ours, in Combs v. Watson, 32 Ohio St. 228, and Zieverink et al. v. Kemper, Receiver, 50 Ohio St. 208, 34 N. E. 250. The McCormick Case was decided in 1878. It was followed and approved in Ryan v. Leavenworth, A. & N. W. Ry. Co., 21 Kan. 365, 404, decided in January, 1879, and the doctrine in both cases was expressly approved and followed by the Supreme Court of Washington in Stearns v. Hochbrunn, 24 Wash. 206, 212, 64 Pac. 165, 166. The decision by the United States Supreme Court, in Wood v. Carpenter, was delivered at the October term, 1879. Since then the question appears not to have been considered by our court. We are satisfied, however, that the doctrine of the two Kansas cases accords with the rules of pleading under our Code, whatever may have been the rules prescribed under the old equity practice.

The action being for fraud and not upon contract, the motion to require plaintiff to state whether the contract was in writing or parol was rightly overruled. The motion to dismiss the action was not well taken. The annual statement of the corporation for 1909

angle formed by a tie and the bottom of the rail and his ankle was badly wrenched and sprained. He succeeded in drawing himself upon the platform, but his injuries subsequently disabled him for a long time.

The contract referred to provided that the shipper should assume all risk and expense of caring for the cattle while in cars or elsewhere. To enable him to meet this risk, the contract provided for the transportation of

BARBER V. CHICAGO, R. I. & P. RY. CO. (Supreme Court of Kansas. Jan. 6, 1912.)

(Syllabus by the Court.) CARRIERS (§ 307*)-CARRIAGE OF PASSENGERS -LIMITATION OF LIABILITY-NOTICE OF IN

JURY.

A contract for the shipment of cattle provided for transportation for the caretaker in charge of them. The contract was signed after the cattle were loaded, and by the time it was signed the train was in motion. The conductor refused to stop the train, and the caretaker was injured while trying to get aboard the caboose. Held, the contract, which required notice of injury to person or property as a condition precedent to an action for damages, was operative at the time of the injury.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1252-1259; Dec. Dig. § 307.*]

contained provisions relating to the rights and conduct of such person. On the back of the contract was indorsed a release of liability by the owner or person in charge of the stock for damages suffered "while in charge of said live stock or on our return passage." The contract also made notice in writing of a claim for damages for injury to person or property a condition precedent to an action for damages, such notice to be given to some one of several specified agents of the company not later than 90 days after the injury complained of. This notice was not given, and about a year after the accident the plaintiff brought suit against the defendant for damages caused by the refusal of the defendant to stop the train so that the plaintiff could get aboard. Judgment was rendered for the defendant, and the plaintiff appeals.

J. L. Berry and B. F. Hudson, for appellant. M. A. Low and Paul E. Walker, for appellee.

his right to recover by failing to give the required notice. He points particularly, however, to the language of the indorsement on the contract quoted above, and argues that he was not in charge of his cattle, and consequently that the contract was not operative until he was aboard the train.

Ample time was afforded the plaintiff to enter the caboose while it was standing still if he had desired transportation in any capacity other than that of caretaker of his cattle. Consequently his only right to call upon the conductor to stop the train after it had started was conferred upon him by the contract. Unless the contract were in force, no cause of action was stated. If the contract were in force, notice was a prerequisite to recovery. Besides this, the plaintiff was in charge of his cattle from the time the contract was signed. If the train had not moved for several hours, and if in that time the cattle had needed attention, the plaintiff would have had the right by virtue of the contract to use the defendant's yards and grounds for the purpose of caring for them, and would have been entitled to the protection and consideration of one in charge of stock undergoing transportation.

BURCH, J. The plaintiff loaded a car with cattle at Pierce Junction for shipment by the defendant, and the car was placed in a train consisting of 60 or more freight cars and a caboose. The plaintiff went into the station house to procure his shipping contract, which included transportation for himself as a caretaker of the cattle, and about the time he came out with the necessary paper the conductor caused the train to be put in motion. The caboose was approaching the plaintiff, but was quite a distance away. The conductor declined to stop the train, and directed the plaintiff to mount one of the freight cars and go to the caboose over the tops of the cars. The plaintiff prudently declined to do this, and walked to a platform in the direction of the rear of the train, and there awaited the arrival of the caboose. The train was moving slowly, and the plaintiff was an old shipper experienced in boarding moving cars, but, as he attempted to take the forward platform of the caboose, his foot

The judgment of the district court is affirmed. All the Justices concurring.

if his mission there was "coaching the attorney." He did say that he was there to testify on any point that might arise in the case, and, if he came there in good faith as a witness ready to be called and to testify as the exigencies of the case might require, he would be within the protection of the law, although unable to state definitely what testimony he intended to give. A witness, or even an attorney, can hardly be expected to foresee or know what issues of fact may arise during a trial, and a party, or his attorney, may bring witnesses to meet contingencies in the case which may never arise, and, if all acted in good faith, the witness would be entitled to exemption from service of summons. However, in this case, it was held, and apparently upon supporting testimony, that Tressler did not come within any of the privileged classes, that he was there as a volunteer, and not as a suitor or witness, and hence was not entitled to the immunity afforded either. There being some testimony to support the findings of fact, it is conclusive in this court in the appeal.

[2] It is finally argued that service upon one defendant in the county in which the action is brought does not warrant a service upon another defendant in a different county in cases like this, or in any case except where the liability of the resident and nonresident defendants is joint and based on contract. The Code provides: "Where the action is rightly brought in any county, according to the provisions of article 5, a summons shall be issued to any other county against any one or more of the defendants, on the plaintiff's præcipe." Gen. St. 1909, § 5654 (Code Civ. Proc. § 61). Under this provision, there is no distinction made between actions on contract liabilities and those asking a recovery for tort. If the action is rightly brought in one county, summons may be issued against a codefendant in another county. Article 5 of the Code provides the rule for determining whether the action is rightly brought. Some of these provisions relate to strictly local actions and some to, what might be termed, quasi-local actions, enumerating them, and then it is provided: "Every other action must be brought in the county in which the defendant or some one of the defendants reside or may be summoned." Gen. St. 1909, § 5648 (Code Civ. Proc. § 55). It is not enough to serve a merely nominal defendant in the county where the action is instituted in order to serve a real defendant in another county. It must not only be rightly brought in the county where the proceeding is begun, but the resident and nonresident defendants must be rightly joined. Rullman v. Hulse, 33 Kan. 670, 7 Pac. 210; Marshall v. Land Co., 75 Kan. 445, 89 Pac. 905.

one of the defendants might be served, and, as a joint and several liability was alleged, it cannot be said that the action was not rightly brought in Johnson county, nor that the defendants were not rightly joined. In the absence of statutory authority, the process of a court cannot be sent or executed beyond its territorial jurisdiction. The statute has provided, in effect, that summons may be served in other counties where the action is rightly brought against several defendants, and where the defendants are rightly joined. The limitation on the power of the courts in this respect must be found in the statute, and it appears to apply as well to joint tort liabilities as to joint liabilities arising on contract.

Finding no error, the judgment is affirmed. All the Justices concurring.

STIVERS v. CITY OF CHERRYVALE. † (Supreme Court of Kansas. Jan. 6, 1912.)

(Syllabus by the Court.)

1. CONTRACTS (§ 41*)—EXECUTION.

Ordinarily when the terms of a contract are reduced to writing, and signed by one of the parties and by him presented to the other, who without signing expresses satisfaction therewith, and a willingness to sign, and who accepts the terms and proceeds with the work, such contract is binding on both parties. [Ed. Note.-For other cases, see Contracts, Cent. Dig. § 218; Dec. Dig. § 41.*]

2. MUNICIPAL CORPORATIONS (§ 339*)—Con

TRACTS-LIABILITY OF CITY.

When a city receives a bid for preparing certain plans and specifications, instructs its attorney to draw a contract, and directs the bidder to proceed without waiting for the contract to be signed, and the bidder thereupon proceeds with the work until it is nearly completed when he is directed to cease, held, that the city is liable to him for the fair cost and value of what he has done, whether it has actually received any benefit therefrom or not.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 870-873; Dec. Dig. § 339.*]

Appeal from District Court, Montgomery County.

Action by A. D. Stivers against the City of Cherryvale. Judgment for defendant, and plaintiff appeals. Reversed, with directions. L. P. Brooks, for appellant. James A. Brady, for appellee.