"Every act shall embrace but one subject, and matters properly connected therewith, which subject shall be expressed in the title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the title." title is not broad enough to confer a right of action upon a member of the public as such. It is true that the opinion in Clayton v. Enterprise Electric Co., 82 Or. 149, 161 Pac. 411, contains language more sweeping than was necessary; but that case is to be disThe language of article 4, § 20, is "every tinguished from the facts in the instant case, act," and therefore, whether a law be an act for there, although not an employé of the passed by the legislative assembly under Enterprise Electric Company, Clayton was the authority of article 4, § 1, of the state nevertheless an employé of Carl Roe, the Constitution, or whether it be an act adopted owner of the motor pump for which the deby the people in the exercise of the power of fendant was furnishing electricity, and was the initiative, as permitted by the last-men- engaged in work on and about the electric tioned section of the Constitution, it must be appliance that caused his death. Turnidge entitled in conformity with the requirements was neither a person engaged in work on of article 4, § 20. Moreover, since every act or about the wire nor an employé of the ownmust have a title expressing the subject-mat-er of the wire. When measured by its title, ter, the title necessarily becomes a part of the Employers' Liability Act is broad enough, the act, and offers valuable help in constru- so far as it concerns an electric wire, to ing the act and determining the legislative include both employés of the owner of the intent. State v. Robinson, 32 Or. 43, 46, 48 wire and also persons “engaged in” certain Pac. 357. The scope of the title may pos- work, as exemplified in Clayton v. Enterprise sibly be made clearer to the eye if the title Electric Co., supra; but it does not go furis set down in the form of a diagram, ac- ther, and give a right of action to every memcurately preserving, however, not only the ber of the public. Moreover, aside from any wording, but also the punctuation: constitutional limitation, it is manifest, for [4] The title informs us that the bill pro-, the reasons already pointed out, that it was vides for the protection and safety of per- not the intent of the act to confer a right of sons "engaged in" certain work, and that action upon every person who might be inthe purpose is to extend the liability of em- jured. ployers to their employés; but the title does not contain the remotest intimation that the body of the bill makes the owner liable in damages to a member of the public, who is neither "engaged in" any kind of work mentioned in the title nor an employé of certain persons. Measured by the rule announced in The conclusion which we have reached does not necessarily delete the words "the public," found three times in section 1 of the act. The words "the public" retain their appropriate function in measuring the duty ow ing to those persons who are entitled to sue, and also in determining the criminal liability the act. If any person is chargeable with ant's affidavit was to the effect that he had negligence on account of the wire breaking no actual notice of the pendency of this suit. from its fastenings, there is, of course, a The answer was not filed with the affidavit, remedy for that negligence. The plaintiff but was deposited with the clerk on Februbrought this action in her individual capacity ary 3, 1917. Three days afterward the court as the widow of the decedent; and therefore made the following order: the judgment of the trial court is not only reversed, but the defendant is granted a judgment of nonsuit. "Comes now the above-named plaintiff by her attorney in open court and moves that the order heretofore granted by this court setting aside the default in the above-entitled cause be stricken from the records and held for naught. MCBRIDE, C. J., and JOHNS, J., concur. And it appearing to the court, from a letter BEAN, J., concurs in the result. SAME TERM. At the term at which a court makes an order or determination, though it be a final judgment or decree, it may modify or vacate it. 3. JUDGMENT 342(2)—VACATING ORDERSAFTER TERM. The court, making an order vacating a default and giving time extending into the next term to answer, has jurisdiction at next term after filing of answer to vacate the order. 4. JUDGMENT 173 - OPENING DEFAULTSETTING ASIDE ORDER OF OPENING. The court, being convinced that it had been imposed on in vacating a default and allowing defendant to answer, can set aside the order as improvidently made. 5. APPEAL AND ERROR Order. 662(2)—RECITAL IN Recital of fact in order appealed from imports absolute verity if nothing else is shown, as against unverified assignment of error and statement of counsel in brief. 6. JUDGMENT 161-OPENING DEFAULT – ACCOMPANYING Answer. Application for leave to answer after default must be accompanied by proposed answer. 7. APPEAL AND ERROR 854(2)—AFFIRMANCE REASON. Order vacating order opening default and allowing answer will be affirmed, assuming reason given in vacating order to be unsound, the record showing application to open default should have been denied because not accompanied by proposed answer. Department 1. Appeal from Circuit Court, Multnomah County; C. U. Gantenbein, Judge. exhibited by plaintiff written by defendant, and dated the 5th day of August, 1916, and addressed to plaintiff, therein acknowledging notice of the divorce proceedings pending in this court, showing thereby that he had received notice thereof nearly three months prior to the hearing and granting of the decree in said cause, it is therefore ordered that said order heretofore granted setting aside said default in said above cause and allowing defendant to answer and file his cross-complaint in said cause, be and the same is hereby annulled, set aside and stricken from the records, and that the motion of defendant to set aside said default is denied." The defendant appealed, assigning two grounds of error: First, "that the court erred in the impromptu hearing held on the 6th day of February, 1917, wherein he accepted as genuine, without the introduction of testimony, a letter purporting to be written by said defendant to said plaintiff on the 5th day of August, 1916;" and, second, substantially that the circuit court was in error in making the order at all. George P. Lent, of Portland, for appellant. BURNETT, J. (after stating the facts as above). [1] In opening the default the court operated under section 59, L. O. L., to the effect that within one year after the rendi tion of a decree the defendant against whom publication is ordered may be allowed to defend the action on application and sufficient cause shown. The result of this was to restore the cause to the control of the court so that it became lis pendens with all its incidents, just as much as if it had been appealed to the Supreme Court, reversed and remanded for further hearing. [2, 3] It is well settled that any order or determination of a court, although it be a final judgment or decree, may be altered, modified, or reversed by the court making it, at any time during the term at which it is made. Deering v. Quivey, 26 Or. 556 Divorce suit by Hannah F. Anderson against Albert J. Anderson. Order opening default was vacated, and defendant appeals. (Deering v. Creighton) 38 Pac. 710; Ayers v. Affirmed. On October 21, 1916, Hannah F. Anderson obtained a default divorce decree against the defendant, Albert J. Anderson, having served the summons by publication. On January 30, 1917, after consideration of affidavits of the parties pro and con, the court took off the default of the defendant and allowed him ten days in which to answer the plaintiff's complaint. The essence of the defend Lund, 49 Or. 303, 89 Pac. 806, 124 Am. St. Rep. 1046; Zelig v. Blue Point Oyster Co., 61 Or. 535, 113 Pac. 852, 122 Pac. 756; First Christian Church v. Robb, 69 Or. 283, 138 Pac. 856. The reason is based on the old commonlaw fiction that the whole term is considered as being but one period of time, all parts of which are ever present before the presiding judge, who makes of it but one transaction, with the condition that when it has lapsed, either by adjournment sine die or by oper- idently made. It is recited in the order ation of law, the whole matter has passed from which the appeal is taken that a letter from the bosom of the court and beyond its written by the defendant was exhibited to control. This much is true only of final the court from which it appeared that he judgments or decrees fully disposing of the had knowledge of the divorce proceedings whole litigation. The cases of Reynolds v. nearly three months prior to the final decree. Barnes, 76 Pa. 427, and Horner v. Hower, This being true, he fraudulently imposed 39 Pa. 126, cited by the defendant, are both upon the court when he represented by his instances where the effort was to attack a affidavit that he had no such information. final judgment in the court rendering it and The recital in the journal of the court imthat too long after the close of the term at ports absolute verity if nothing else is shown. which it was entered. Those precedents are We have no legal data in the record enabling not applicable to a situation where control us to dispute the statement of the court that of the cause has been restored to the court as the letter was the genuine writing of the in this instance. If, therefore, the author- defendant. All we have in opposition is the ity of the court is retained so that something unverified assignment of error and the stateremains to be done, although it is carried ment of counsel in the bricf to the effect that over to some succeeding term, the court still the court accepted the letter as genuine, withhas power to alter, modify, or reverse the out the introduction of testimony, and no previous decision, especially if the order to showing whatever is made that the docube changed is interlocutory in its nature. In ment is not authentic. We cannot say, thereMultnomah county, whence this appeal origi- | fore, that the court exercised its function nates, there is a term of the circuit court be- erroneously when it set aside the interlocuginning on the first Monday of each month tory order taking off the default. in the year except July and August. We discern from the record, therefore, that the de-son for the court's action is found by an infault was removed at the January term. The answer was filed and the order from which this appeal is taken was made at the February term. Taking off the default restored the cause to the control of the court, and at the latter term it was in the same condition that it was prior to the final decree, and hence ripe for the action of the court in setting aside the interlocutory order allowing the defendant to answer. It was within the jurisdiction of the court, therefore, to vacate the order allowing the defendant to answer. Henrichsen v. Smith, 29 Or. 475, 42 Pac. 486, 44 Pac. 496. [4, 5] It becomes necessary, then, to determine whether the record before us shows that the court was wrong in making the order attacked by the appeal. If, as a matter of fact, the court was convinced that it had been imposed upon in making the order, allowing the defendant to answer, and had been the victim of the defendant's deceit, it had the right to set it aside as having been improv [6, 7] Besides all this, however, a good rea spection of the record, so that it was Justified in holding as erroneous the order in opening the default. It is a well-established rule in this state that all applications for leave to answer after default must be accompanied by the answer proposed. Oregon Investment & Mortgage Co. v. Keller, 85 Or. 262, 166 Pac. 762. The record before us shows that the answer was not presented with the application for leave to answer, but was filed during the next term of court. The application ought to have been denied in the first place. Conceding, therefore, for the sake of the argument, that the reason given by the court based upon the letter was not sound, yet we discover in the record a good reason for the court's correcting its own error. The decree appealed from must be affirmed. MCBRIDE, C. J., and BENSON and HARRIS, JJ., concur. (104 Wash. 1) WHEELER v. PITWOOD et al. (No. 14705.) In the seller's action for the price, a written contract to furnish reinforcing steel could not be varied by parol testimony of prior representations or agreements as to the time of delivery. 3. SALES 150(3) — ORDER FROM STOCKMILL SHIPMENT-RIGHT TO COMPLAIN. Where reinforcing steel was ordered from stock, not mill shipments, and material was furnished within reasonable time, though the jobbing company, not a manufacturer, from which seller procured steel, itself procured small part from mill, buyers cannot complain that mill shipments were made. Department 1. Appeal from Superior Court, Spokane County; Hugo E. Oswald, Judge. Action by Walter H. Wheeler against Edward Pitwood, his wife, and the Welsh Investment Company, a corporation. From judginent for plaintiff, defendants appeal. Affirmed. Cannon & Ferris, of Spokane, for appellants. Hamblen & Gilbert, of Spokane, for respondent. is called the "Turner Spiral Mushroom System," the kind that was used in the Pitwood building. The system included necessary working reinforcing diagrams and plans, including those for the laying of the steel. One P. F. Kennedy was in the employ of respondent as a solicitor of business in Spokane, and became active to get the Pitwood job. Several other persons made bids on a per-ton basis for whatever steel was used, agreeing also to furnish working diagrams. Mr. Kennedy had several talks with appellant, and was advised of prospective storage patrons of the building for the following winter. Mr. Kennedy spoke of the advantage of prompt delivery, or "stock" shipment, his principal could give, and it appears that respondent was advised thereof by Mr. Kennedy. On July 28, 1916, Mr. Kennedy wrote respondent at Minneapolis, asking that he make a bid on the job, inclosing in his letter preliminary sketches, not working drawings, consisting of blueprints of floor plans furnished by appellant's architect. Using the preliminary sketches, which generally varied, it seems, from working drawings as much as 10 per cent., for the purpose of determining the amount of material required, respondent figured that about 45 tons of reinforcing steel would be required; and promptly submitted a written contract, which, with one slight change, to be noticed hereafter, was signed by the parties on the dates and at the cities shown by the contract. The contract, consisting of an offer and acceptance, is as follows: "Seller's Original Copy. "Minneapolis, Minn., July 31, 1916. "Dr. E. Pitwood, 503 Hyde Bldg., Spokane, Wash.-Dear Sir: Referring to blueprints of sketches of your architects, Hyslop and Westfourth floors of your warehouse building, sent cott, showing plans of first, second, third, and me by Mr. P. F. Kennedy of your city, also to the blueprint of my drawing No. 1, revised, showing framing plans for your said building, from mill construction building to a fireproof which I understand you propose to convert building with reinforced concrete floors; MITCHELL, J. This action was brought by respondent to foreclose a lien upon the property of appellants Edward Pitwood and wife on account of reinforcing diagrams and steel furnished in changing a building of appellants in Spokane from mill construction to a fireproof building with reinforced concrete floors. The defense was false representation as to the amount of steel to be furnished for the contract price, false representation as to the time of delivery of the steel, and failure to deliver as agreed, all knowingly done to induce appellants to enter into the contract; and because of the failure of respondent to furnish steel in the amount and within the time agreed appellants demanded dam-length, except spirals for column tops which ages. Defendant Welsh Investment Company is not interested in this appeal. There was judgment foreclosing the lien as demanded in the complaint. Respondent, who resided in Minneapolis, was an engineer and contractor of structural ironwork, and sold reinforcing steel used in such work, having had assigned to him certain territory (which included Spokane) by the C. A. P. Turner Company of Minneapolis, which company was a heavy jobber in steel of that character carried by it to supply its customers, including respondent, who represented the Turner Company in placing what "My price for the necessary reinforcing diagrams and reinforcing steel for said building is four thousand nine hundred sixty dollars ($4,960), steel delivered f. o. b. shipping point and allow freight to Spokane, Washington. Steel all stock shipment. Steel all straight, cut to will be furnished coiled with spacing bars, column spirals which will be furnished coiled to the proper diameter, and column and beam bars which will be furnished bent to detail. The above price is based on using the "Turner Spiral Mushroom System' of reinforced concrete construction, designed in accordance with standard practice as approved by C. A. P. Turner of Minneapolis, Minn. our "I include in the above proposition the necfor only the following items: Column footings, essary reinforcing diagrams and reinforcing steel columns, 2nd, 3rd, 4th, floor slabs and roof slab, necessary interior and spandrel beams supporting same, reinforced concrete stairs. "Terms: Terms shall be cash thirty days from steel delivery days, payments to be made from time to time as steel is delivered in funds cur For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes rent in New York, N. Y., at the office of Walter H. Wheeler, 1112 Met. Life Bldg., Minneapolis, Minn. I to proceed at once to order the necessary reinforcing steel required by my said diagrams soon as said diagrams are complete and steel lists made. I make the forego ing proposition for acceptance in writing at my said office on or before August 7, 1916, as per form of acceptance as hereon below written. After said date same will be subject to change without notice. "The above is all contingent upon strikes, accidents, delays of carriers and other delays unavoidable and beyond my control. I estimate said work will require about 755 cu. yards of concrete and 50 tons of reinforcing steel. Yours truly, [Signed] Walter H. Wheeler. "Signed August 10, 1916, at Minneapolis, Minn." "Spokane, Washington, August 5, 1916. "Mr. Walter H. Wheeler, 1112 Metropolitan Life Bldg., Minneapolis, Minn.-Dear Sir: Referring to your foregoing proposition offering to furnish me the necessary reinforcing diagrams and reinforcing steel for remodeling my ware house, for which Hyslop & Westcott are architects, I hereby accept your said offer as above, and agree to pay you for the use of said reinforcing diagrams and for the necessary reinforcing steel as above the sum of $4,960. I to pay the freight on all steel shipped in by you. You to credit me with the amount of said freight when paid, provided I furnish you the original freight bills for same receipted by the transporting railway companies. Terms to be cash 30 days from the steel delivery days, payments to be made you from time to time as steel is delivered, in funds current in New York, N. Y., payable to the order of Walter H. Wheeler, at his office 1112 Met. Life Bldg., Minneapolis, Minn. You to proceed at once to order said steel as soon as your reinforcing diagrams and steel lists are complete. It is understood steel delivery is f. o. b. point of shipment. "Yours truly, [Signed] Edward Pitwood. "Signed at Spokane, Washington, August 5, 1916." In the contract as forwarded by respondent, the last sentence above the place for the signature of respondent was: in three shipments, as follows: August 15th, September 5th, and October 7th. It arrived at Spokane on August 25th, September 26th, and October 13th. There is ample proof that the steel was shipped and received within a reasonable time, considering both the general transportation conditions and steel market at that time. All steel needed was furnished, and it amounted to between 39 and 40 tons. Severe and continuous winter weather came on about November 1st, somewhat earlier than usual, preventing the completion of the building until late in the winter. Appellants refused to pay the contract price. Appellants, in presenting the cause, reduce their contentions to two points: First, shall the respondent recover the amount of his contract where he intentionally, or by design, misrepresents a material fact or produces a false impression in order to mislead the other, he having accomplished his design to apAnd, second, where an pellants' damage? agreement is entered into to furnish material from "stock" in less than two weeks, and an excess price is paid for stock shipment, has the party complied with his agreement when he furnishes "mill shipment," which takes a much longer time, and may not the party injured recover damages resulting thereby? Appellants contend, in support of their first proposition, that at the time the contract, afterwards signed, was proposed by respondent, he was advised by the blueprint sketches that had been furnished him how to accurately determine the amount of steel required, that he did so determine, and that by the terms of the proposed writing he purposely misrepresented that 50 tons would be needed instead of between 39 and 40 tons, that he knew appellants relied on it, and that the statement was made to deceive, and did deceive, appellants to their damage. With such idea of the facts, our attention is Appellants' architects objected to the words called by appellants to a splendid line of cas"not more than," insisting that respondentes from this and other courts, the doctrine or was to furnish all the steel required by the items in the contract; whereupoh the last sentence in that portion of the contract was rewritten to read as shown in the contract, and then signed by the appellant. It was then forwarded to the respondent, who signed it on August 10, 1916. "I estimate said work will require 755 cu. yds. of concrete and not more than 50 tons of reinforcing steel." As soon as appellant signed the contract in Spokane, Mr. Kennedy advised respondent by wire; whereupon respondent, after a week's work, prepared complete working plans and diagrams from which he figured accurately the amount of steel needed, and promptly ordered all the steel from the Turner Company of Minneapolis. The Turner Company's stock of steel varied, of course, according to its sales and purchases, the latter of which were occasionally affected by some delay of supply from the mills, and a small part needed in this order had to be gotten from the mill by the Turner Company after receiving the rule of which may be clearly exemplified by reference to two of the cases in this court, as follows: Wooddy v. Benton Water Co., 54 Wash. 124, 102 Pac. 1054, 132 Am. St. Rep. 1102, wherein the court say: "All the cases agree that the purchaser may rely upon representations of the vendor where the property is at a distance, or where for any other reason the falsity of the representations is not readily ascertainable; * * and the case of Sowles v. Fleetwood, 97 Wash. 166, 165 Pac. 1056, to the effect that, upon the sale of the furniture and good will of a hotel business, false representations as to the value of the business and amount of monthly profits, peculiarly within the knowledge of the seller and inducing the sale, may be relied upon by the purchaser. In this matter appellants argue that in alleging respondent intended to deceive they are strongly fortified by a letter written on September 13, 1916, by respondent in answer |