The opinion of the court was delivered,
by Thompson, C. J.— These writs of error bring up the same questions precisely. They arose on the trial of two sci. fas. sur mechanics’ lien. The claim in each case was upon a joint lien and an apportioned claim, and the main question was whether the structure was a single or double building, constituting one or two tenements, and whether it was proper to treat that as a question of law, or of fact and law.
The learned judge below, under the circumstances, regarded it as a mixed question of law and fact, and in this he was undoubtedly right. It has been somewhat tritely said by our own court in a contest about whether the building was a new structure or only a repair, that the court would decide the question when it was easy, but when difficult it was for the jury to decide. The meaning of this was, that when it depended on disputed facts it was a question for the jury and not alone for the court. In the case in hand, the houses were built together, without any external division excepting as the internal structure showed the purpose to be two tenements. The building is occupied separately, as two — was sold *457and mortgaged separately by the builder, the defendant in the ease. Interiorly it was divided by brick walls on the ground and second floors; each side having its own door, stairway and hall. But because there was a door in the partition on the second floor and a common attic and stairway, the defendant claimed it to be a single building, and therefore that the apportionment of the lien destroyed it.
In this category the learned judge received evidence, not only of the kind of structure, but of the purposes to which the defendant had devoted it, selling one-half to one, and mortgaging the other half to another, and left the question whether a single structure or not to the jury, and they found that it was two buildings.
It is strange that this should be complained of. Whether one or two buildings was a fact, and a fact which might be proved between the owner and the builder. If the former chose to erect a structure, or building, after such a fashion as to leave it doubtful whether one or two distinct buildings were intended, can he complain that this is elucidated by proof? These buildings, in addition to their internal structure and use, were built on separate subdivisions of a larger block or lot, and were numbered 8 and 4 of the subdivisions of that block. It is true, neither this nor any one fact by itself fixed conclusively that the erection was single, hut this, with other facts, and the treatment of the structure by the defendant, the owner, could not fail to fix its character as two distinct tenements, which required the lien to be apportioned. The subsequent acts of the defendant were proper evidence against himself, and served to show what he must have intended from the beginning. I refer to his sale and mortgage of the buildings separately. The acts and sayings are always evidence against a party to a case, if they relate to the subject-matter of the issue. On all this part of the ease the learned judge’s views and charge were sound and unexceptionable.
We see nothing wrong in admitting the entry in the plaintiffs original book of charges against the’buildings of the item “ Running cornice $200.” The objection was that it was not itemized, and the days or time occupied in doing the work were not set out. A party who has received the benefit of such work, must be hard pressed for an excuse for not paying when obliged. to resort to such an objection. That this work was done, and well done, we may suppose, for we hear of no objection on that score, it was patent on the building. It was there, and the owner has had the advantage of it. But without saying that we might not presume it to be a single item for work in the absence of evidence to the contrary, we see the item in the book was offered in connexion with testimony independently of the book and it was proved, and proved to have been done at the request of the defendant. This *458relieves the question of all difficulty if any existed. This assignment of error is not sustained.
The exception taken to the charge in the book of “ mortar for Rosenagle $4,” does not seem to have been a proper charge to the buildings. That is its appearance here. It is but $2 against each building, and might be treated as de minimis. We will, however, allow the plaintiff to remit two dollars of the judgment in each case, and affirm the judgments on this condition.
As to the other assignments of error, there is nothing in them, and one of them is fatally defective in its particulars. We need not further notice them.
The judgment in each of these is affirmed.