BUFFINGTON, Circuit Judge.
In the court below, the Chesapeake Transit Company, hereafter called the plaintiff, brought an action of assumpsit, for use of A. M. Kerr and J. Edward Cole, against Abram C. Mott, hereafter called the defendant. The action was to recover damages from Mott, a surety, for nonperformance by his principals, Isaac A. Walker & Son, of a contract with the plaintiff to build a steam railroad from Norfolk, Va., to Cape Henry. In pursuance of the Pennsylvania practice act of May 25, 1887, which requires the plaintiff to file “a concise statement of the plaintiff’s demand,” and which shall be replied to by affidavit, plaintiff filed a declaration wherein it set forth the written contract between the parties, the failure of the Walkers to perform, and the rescission thereof by plaintiff. The declaration then alleged:
[544]*544“By reason of the failure and neglect and refusal of the said Isaac A. Walker & Son to comply with and perform the stipulations aforesaid, and to prosecute said work in accordance therewith, the plaintiff, Chesapeake Transit Company, was obliged to and did procure the completion of said work by other parties at a cost exceeding by more than $20,000 the cost provided in the aforesaid contract for said work between the plaintiff, Chesapeake Transit Company, and the defendants, Isaac A. Walker & Son.”
To this the defendant replied by affidavit denying the completion of the contract as alleged above. On the trial of the cause, the plaintiff, instead of pursuing the usual course of proving the alleged performance of the contracted work by those who did it, called no such witnesses, but called an engineer who took the contract which plaintiff had afterwards entered into with other parties for building an electric road (which would also be operated by steam, and in which there was a terminal change), and assumed the cost of this electric road built under the second contract was a proper standard of cost for the exclusively steam road, which Walker & Son were to build under their contract. The engineer then figured out what part and cost of the work done under the second or electric road contract should be charged to the first, or steam road contract. This testimony was received under objection, and submitted to the jury. They were unable to reach a verdict, whereupon the court, on this being reported, gave binding instructions to find for the defendant. On motion for a new trial the court said:
“But there is a further reason for denying the plaintiff’s right to recover, namely, that the evidence offered in support of the right was not definite enough to enable the damage to be ascertained. The plaintiff was well aware that the two contracts, each taken as a whole, were not capable of comparison, and, accordingly, recovery was sought for the increased cost of one item only —an item that was necessarily common to both contracts, namely, the cost of the permanent way, including, in that phrase, grading, ties, rails, bridges, and the like. But no effort was made to prove the difference by the best and most direct method; that is, by proving for what price Walker & Son had agreed to ■do this work, if such price could be satisfactorily discovered, and then by proving what the work actually cost, as it was done upon the ground by the National Construction Company. The method adopted was to take the contract price under the second agreement, attempt to reduce it to a cash basis, deduct therefrom the estimate of certain witnesses concerning the fair value (but not the actual cost, so far as appears) of the work and materials that were peculiar to the second contract, and assume the remainder to be the actual cost of the permanent way. This remainder was then compared with the engineer’s estimate of what the same cost would probably have been under the Walker contract, and the difference was put forward as the plaintiff’s actual loss. Many complications and uncertainties of detail, which I shall not take time to specify, are involved in this method of calculation, but, even as just stated, I think it is manifest that the method is largely conjectural, and could not safely be relied upon to produce a result even approximately correct. And when, to the difficulties thus appearing, are added the difficulties arising from the numerous changes in detail between the two contracts, it becomes impossible, I think, to reach a conclusion that is even fairly satisfactory. If I may judge by my own experience, no one can read the evidence without being bewildered by the effort to make the frequent allowances and assumptions that must be made in order to follow the plaintiff’s calculation, and without believing that this difficulty furnishes the probable reason why no agreement upon a verdict could be reached. If the case were now before me without a jury, I should find it impossible to reach a conclusion that I could defend by specifying the particular pages of the testimony upon which I relied.”
[545]*545A new trial having been refused, and judgment entered for defendanton this verdict, the plaintiff sued out this writ, and assigned for error:
“(1) The court erred in directing the jury to return a verdict for the defendant in this cause. (2) The court erred in entering the judgment in favor of the defendant against the plaintiff in this cause.”
The main question here involved is the action of the court in giving binding instructions for the defendant. Now, the burden rested on the plaintiff to furnish such proofs as warranted a verdict in its favor. But the proofs here furnished were such that the jury was unable to find a verdict; the trial judge has called attention to the unusual and unsatisfactory character of the evidence as quoted above, and has said if a jury was waived he would be unable to reach a verdict; and we are free to confess that after a perusal of the whole testimony we have reached the same conclusion. Such being the case, and. the proof being of such an unsatisfactory character that a judge trained in the marshaling and analysis of facts is unable to find a verdict, were the case tried by him without a jury, was it error to say the plaintiff had not met the duty resting upon it of producing evidence of such character as to warrant a verdict in its favor? It was simply a case of furnishing insufficient evidence. After a careful consideration of the proofs, we cannot say as matter of law the court was guilty of error in giving binding instructions to the jury. What else could it do if the evidence was such that neither court nor jury could find a verdict? The plaintiff simply failed to meet the burden of proof the law cast upon it. The two assignments of error are therefore not sustained.
It is, however, contended that under the assignments of error we should convict the court of error because, as stated in plaintiff’s brief, the court—
“overlooked certain items of actual damage which are in evidence in the case and undisputed, which arise directly from the abandonment of the written contract, and are in no way connected with the new contract or what was done thereunder.”
The rule of this court (court rule 11, 79 C. C. A. xxvii, 150 Bed.
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BUFFINGTON, Circuit Judge.
In the court below, the Chesapeake Transit Company, hereafter called the plaintiff, brought an action of assumpsit, for use of A. M. Kerr and J. Edward Cole, against Abram C. Mott, hereafter called the defendant. The action was to recover damages from Mott, a surety, for nonperformance by his principals, Isaac A. Walker & Son, of a contract with the plaintiff to build a steam railroad from Norfolk, Va., to Cape Henry. In pursuance of the Pennsylvania practice act of May 25, 1887, which requires the plaintiff to file “a concise statement of the plaintiff’s demand,” and which shall be replied to by affidavit, plaintiff filed a declaration wherein it set forth the written contract between the parties, the failure of the Walkers to perform, and the rescission thereof by plaintiff. The declaration then alleged:
[544]*544“By reason of the failure and neglect and refusal of the said Isaac A. Walker & Son to comply with and perform the stipulations aforesaid, and to prosecute said work in accordance therewith, the plaintiff, Chesapeake Transit Company, was obliged to and did procure the completion of said work by other parties at a cost exceeding by more than $20,000 the cost provided in the aforesaid contract for said work between the plaintiff, Chesapeake Transit Company, and the defendants, Isaac A. Walker & Son.”
To this the defendant replied by affidavit denying the completion of the contract as alleged above. On the trial of the cause, the plaintiff, instead of pursuing the usual course of proving the alleged performance of the contracted work by those who did it, called no such witnesses, but called an engineer who took the contract which plaintiff had afterwards entered into with other parties for building an electric road (which would also be operated by steam, and in which there was a terminal change), and assumed the cost of this electric road built under the second contract was a proper standard of cost for the exclusively steam road, which Walker & Son were to build under their contract. The engineer then figured out what part and cost of the work done under the second or electric road contract should be charged to the first, or steam road contract. This testimony was received under objection, and submitted to the jury. They were unable to reach a verdict, whereupon the court, on this being reported, gave binding instructions to find for the defendant. On motion for a new trial the court said:
“But there is a further reason for denying the plaintiff’s right to recover, namely, that the evidence offered in support of the right was not definite enough to enable the damage to be ascertained. The plaintiff was well aware that the two contracts, each taken as a whole, were not capable of comparison, and, accordingly, recovery was sought for the increased cost of one item only —an item that was necessarily common to both contracts, namely, the cost of the permanent way, including, in that phrase, grading, ties, rails, bridges, and the like. But no effort was made to prove the difference by the best and most direct method; that is, by proving for what price Walker & Son had agreed to ■do this work, if such price could be satisfactorily discovered, and then by proving what the work actually cost, as it was done upon the ground by the National Construction Company. The method adopted was to take the contract price under the second agreement, attempt to reduce it to a cash basis, deduct therefrom the estimate of certain witnesses concerning the fair value (but not the actual cost, so far as appears) of the work and materials that were peculiar to the second contract, and assume the remainder to be the actual cost of the permanent way. This remainder was then compared with the engineer’s estimate of what the same cost would probably have been under the Walker contract, and the difference was put forward as the plaintiff’s actual loss. Many complications and uncertainties of detail, which I shall not take time to specify, are involved in this method of calculation, but, even as just stated, I think it is manifest that the method is largely conjectural, and could not safely be relied upon to produce a result even approximately correct. And when, to the difficulties thus appearing, are added the difficulties arising from the numerous changes in detail between the two contracts, it becomes impossible, I think, to reach a conclusion that is even fairly satisfactory. If I may judge by my own experience, no one can read the evidence without being bewildered by the effort to make the frequent allowances and assumptions that must be made in order to follow the plaintiff’s calculation, and without believing that this difficulty furnishes the probable reason why no agreement upon a verdict could be reached. If the case were now before me without a jury, I should find it impossible to reach a conclusion that I could defend by specifying the particular pages of the testimony upon which I relied.”
[545]*545A new trial having been refused, and judgment entered for defendanton this verdict, the plaintiff sued out this writ, and assigned for error:
“(1) The court erred in directing the jury to return a verdict for the defendant in this cause. (2) The court erred in entering the judgment in favor of the defendant against the plaintiff in this cause.”
The main question here involved is the action of the court in giving binding instructions for the defendant. Now, the burden rested on the plaintiff to furnish such proofs as warranted a verdict in its favor. But the proofs here furnished were such that the jury was unable to find a verdict; the trial judge has called attention to the unusual and unsatisfactory character of the evidence as quoted above, and has said if a jury was waived he would be unable to reach a verdict; and we are free to confess that after a perusal of the whole testimony we have reached the same conclusion. Such being the case, and. the proof being of such an unsatisfactory character that a judge trained in the marshaling and analysis of facts is unable to find a verdict, were the case tried by him without a jury, was it error to say the plaintiff had not met the duty resting upon it of producing evidence of such character as to warrant a verdict in its favor? It was simply a case of furnishing insufficient evidence. After a careful consideration of the proofs, we cannot say as matter of law the court was guilty of error in giving binding instructions to the jury. What else could it do if the evidence was such that neither court nor jury could find a verdict? The plaintiff simply failed to meet the burden of proof the law cast upon it. The two assignments of error are therefore not sustained.
It is, however, contended that under the assignments of error we should convict the court of error because, as stated in plaintiff’s brief, the court—
“overlooked certain items of actual damage which are in evidence in the case and undisputed, which arise directly from the abandonment of the written contract, and are in no way connected with the new contract or what was done thereunder.”
The rule of this court (court rule 11, 79 C. C. A. xxvii, 150 Bed. xxvii) provides that an assignment of error “shall set out separately and particularly each error asserted and intended to be argued.” This has not been done, and, even if the case was one where we were inclined to relax the rule, there is no place in the record where the court be low was called to pass on this question and where its action or omission was made the subject of objection or exception. The most that can be said is that it was “overlooked” by the judge. But in the way this case was tried we do not think it was even overlooked by the court. In the first place, the pleadings, as we have seen, placed the plaintiff’s right to recover expressly on the ground that it procured—
“the completion of said work by other parties at a cost exceeding by more than $20,000 the cost provided in the aforesaid contract; * * * wherefore the sum of twenty thousand dollars ($20,000), with interest as aforesaid, is justly due and owing by the said defendants to the said plaintiffs, to recover which this suit has been brought.”
[546]*546It will be noted that no allegation was made of anything done, or expenditure made, by the plaintiff in pursuance of the first contract, and of which it lost the benefit. But not only was no such claim mentioned or sued for, but the case was not tried on the theory that any such claim was in issue. The court, without objection or point so requesting, made no mention of such claim in its charge. Its attention was not called to the alleged omission as ground for new trial; it was not discussed in the court’s full opinion refusing a new trial; and, finally, it is not specially assigned for error, or was any ruling made upon it or exception taken on which an assignment could be based. Manifestly it is an afterthought, and if, as stated in plaintiff’s brief, it was an oversight of the court, the court’s attention should have been called to it. That not having been done, and the case having been tried on the ground of recovery expressly declared upon, it would be unfair to reverse the case on grounds upon which the trial court never ruled and therefore could have committed no error.
The judgment below will be affirmed.