on, and that Hershey then ordered him to do the extra work, and that he did do it as well as it could have been done under the circumstances. On page 5 of the testimony, the plaintiff testified: "I told him that is an awful thing to tear this iron up off of those oak lath.' Finally, he said I am to do it, and he said I am not to do it for nothing; he will pay me for it." In the face of this, it is difficult to see how instruction could have been given to the jury, whereby this portion of the claim could have been taken away from its consideration.

The remaining reason, the fifth, can hardly be considered seriously, as the jury has found that the plaintiff performed his contract and was entitled to payment under it. What damages the defendant sustained was, therefore, immaterial. But we do not think the defendant suffered by reason of the exclusion of his evidence upon this point. The general rule is, in an action for a breach of contract, that the loss for which a recovery may be had must be the direct and proximate consequence of the breach, and so connected with the stipulation as to have been in the contemplation of the parties when the contract was made: Adams Express Company vs. Egbert, 36 Pa., 360; Billmeyer vs. Wagner, 91 Pa., 92; that "damages for which compensation may be justly claimed and allowed are such only as naturally and ordinarily flow from the breach of contract complained of; they should be such as may fairly be supposed to have entered into the contemplation of the parties when they made the contract, or such as might, according to the ordinary course of things, be expected to follow its violation": Kinports vs. Breon, 193 Pa., 309; Hutchinson vs. Snider, 137 Pa., 1; Worth Bros. & Co. vs. Henry Martin Brick Machine Mfg. Co., 24 LANCASTER LAW REVIEW, 286; Bradley vs. McHale, 19 Sup., 300. Now, what was the probable consequence of a breach of the contract by the plaintiff? It was shown that the defendant subsequently employed other mechanics to make satisfactory the work which he alleged the plaintiff failed to do properly, and he presented a bill as a set-off to

the amount of $151.52, which was admitted in evidence and considered by the jury. If his contention was correct, he was entitled to be made whole for the moneys which he was obliged to expend in order to complete the work which the plaintiff had agreed to do. When, however, he claimed that he was also entitled to a credit for injury to certain crops which he placed in his barn after the contract was made and with a knowledge of all the surrounding circumstances, we were of the opinion that such damages were too remote and could not have been contemplated by the parties when the contract was entered into. Sprenger Brewing Company vs. Fenninger, 24 LANCASTER LAW REVIEW, 252. No case has since been presented by counsel for defendant which sustains his view, and we have not been induced, therefore, to change our opinion as to this proposition.

After a somewhat exhaustive review of the case, we have concluded that it was properly tried and fairly submitted, and that the verdict should not be disturbed. The rule for a new trial is, for this reason, discharged.

Rule discharged.

C. P. OF LANCASTER COUNTY.

Commonwealth vs. Williams.

Summary conviction - Evidence - Au tomobile law-Acts of April 19, 1905, P. L. 217, and April 27, 1909, P. L. 273.

While a failure to refer to the particular act alleged to have been violated in summary of assembly has been clearly violated, a conconviction proceedings is not fatal if an act viction for operating a motor vehicle on city streets at an unlawful rate of speed will be set aside where it does not clearly appear that fendant was sentenced were violations of the the acts complained of and for which the deAct of April 19, 1905 and does seem clear that the proceedings were for violation of the Act of April 27, 1909 which Act was not yet in force when the alleged offense was committed.

In summary conviction a record is fatally defective which shows that the defendant was sentenced but does not show that he was con

victed.

In summary conviction the testimony need not be fully written out or appear on the re

September Term, 1909. No. 39.

Certiorari.

if the act of the defendant, complained of, is clearly a violation of an act of assembly. The complaint in that case was in the language of Section II of the Act

B. F. Davis for defendant and cer

tiorari.

LER, J.

Complaint was made against the defendant before the Mayor of Lancaster City in which it is charged that he did in the City of Lancaster, "unlawfully operate a motor vehicle on the public highways of said city at a rate of speed greater than is reasonable and proper having regard to the width, traffic and use of the highway, so as to endanger property or life or limb of any person, or at a rate of speed exceeding one mile in two and a half minutes contrary to the acts of assembly, etc." On this complaint a warrant was issued and defendant arrested and fined $10 and costs. This writ of certiorari was then issued and exceptions have been filed questioning the regularity of the proceedings. It is not necessary for us to consider all of the exceptions as several of them point out such irregularities in the proceedings as will require us to set them aside.

One of these exceptions is that the proceelings were instituted for a violation of the Act of 27 April, 1909, P. L., 273, which provides that it shall not go into effect until December 31, 1909, that being after the alleged offence was committed. At the argument it was contended that they were instituted for a violation of the Act of 19 April, 1905, P. L., 217. No reference is made in any part of the proceedings to what act was violated. The decisions of the lower courts are numerous that some reference must be made to it or the proceedings are fatal. The latest decision of the Superior Court on this subject is Commonwealth vs. Nichols, 38 Sup. Ct., 504, wherein it is decided that while it is the better and safer practice, in proceedings of this nature, to refer in the complaint to the particular act alleged to have

In the present case the defendant was charged in the complaint with having done that which was a violation of section 14 of the Act of 1909, supra, as it was in its exact language, while the record does not show that the defendant was convicted, which is another fatal defect in the proceedings. It does show that he was sentenced. If we assume from this that he was convicted, we are not informed of what he was convicted. It may have been only a part of what he was charged with in the complaint, that is, either that he operated his motor vehicle at a rate of speed greater than is reasonable and proper having regard to the width, traffic and use of the highways. so as to endanger property or life or limb of any person, or that he operated it at a rate of speed exceeding one mile in two and a half minutes. The Act of 1909 makes each of these specific ofences. The Act of 1905, only makes the operation of a motor vehicle of a greater speed than a mile in six minutes, an of fense. Therefore if he operated it at rate of speed of only seven miles a hour it might have been greater that was reasonable and proper having re gard to the width, traffic and use of the highway, etc., yet this would not have been a violation of the Act of 1905, which only limits the rate of speed at which a motor vehicle may be operated regardless of what is reasonable and proper having regard to the width, traffic and use of the street, or the endangering of property or life or limb, so that so far as the record shows he may have been convicted of one of the offences. charged in the complaint, which is not an offence under the Act of 1905. It does

sale.

October Term, 1909. No. 6.

Rule to open judgment.

The defendant paid $5 on the lease when he signed it and $12 more on March or April following, leaving due the sum of $108. No further payments

D. F. Magee for defendant. January 15, 1910. Opinion by HASSLER, J.

This is a rule to show cause why the judgment entered on a warrant of attorney to confess judgment should not be opened. The paper, containing the warrant of attorney upon which the judgment was entered, is a lease of a second hand electric mill by the plaintiff to the defendant, and is dated January 7, 1909. It is for the term of 10 months from the date of the receipt of the mill by the defendant, which it is admitted was about February 1, 1909. The defendant agreed to pay a monthly rental of $125, $5 of which was to be and was paid when the lease was signed and $12 was to be paid on the 15th day of each month, commencing on February 15, 1909, and ending on November 15, 1909. At the expiration of the term the defendant agreed to return the mill to the plaintiff in as good condition as when received by him. It was further agreed that upon the surrender of the property at the expiration of the term the lessor would execute a bill of sale to the lessee for it providing he had performed all his covenants and agreements as contained in the lease. It was further agreed that if the lessee failed to pay the monthly installments when due or to perform any other covenant in the lease, the whole amount of the rental should at once become due and payable; if the lessor did not exercise its right to take possession of the machine, and the jessee empowered any attorney to appear for him and enter judgment for the whole of the hire or rent unpaid with costs and 10 per cent. collection fee. The lessor guaranteed the mill to be free from inherent electrical and mechanical defects and to repair, without charge, any such defects that may develop within a year, provided the lessee

judgment for that sum with ten per cent. collection fees on September 11, 1909, which judgment amounted to $118.80.

In his petition the defendant gives as the reasons why the judgment should be opened (1) that the paper containing the warrant of attorney was signed by him under untrue representations as to its purpose and effect, and (2) that there is nothing due upon said paper or contract upon which the judgment was entered.

There is not a scintilla of testimony to support the first reason. He says he did not know its contents, but he should have done so before he signed it. He was given the paper to read and according to his testimony did read part of it, and according to the testimony on the part of the plaintiff he read all of it. No representation is shown that could have led the defendant to believe that it did not contain anything that was in it or that it should contain anything that was omitted from it. It can only be reformed or set aside because of some fraud, accident or mistake in procuring it, or in omitting something that it should have contained or in containing something that should not be in it, and this must be shown by testimony that is clear, precise and indubitable. No such testimony, nor in fact any testimony to this end, having been produced, we are bound to conclude that the paper is the contract between the parties. In addition to this there is a clause in it which says that it contains all the agreements, representations and inducements between the parties, and that there are none other..

The second reason is that nothing is due on the lease. In support of this reason he alleges that it was not the kind of machine it was agreed that it should be, and that it is defective. He received it about the 1st of February, set it up on March 10, and has continued to use it under his lease up to the present time.