Opinion by
Mr. Justice Sterrett:In charging the jury, as complained of in the first specification, the learned judge, among other things, said: “If you find under the evidence that the claim was filed in time, and there is really no dispute upon that point, that is, there is no testimony to dispute it,” etc. Again, when the jury came into court and announced their inability to agree, he referred briefly to the same subject, and, in effect, instructed them that plaintiff’s testimony made out a prima facie case, entitling him to their verdict, and cast upon defendant the burden of satisfying them that she had a good defense on other grounds.
It was, of course, incumbent on plaintiff below to prove affirmatively that the lien was filed within six months after completion of his contract with Olmstead. If he failed in that, he had no case against the owner of the building. Whether the lien was filed in time or not was a question of fact for the jury under all the evidence; and any instruction that, in effect, withdrew that question from their consideration was erroneous. Although perhaps not so intended by the learned president of the common pleas, we think the portions of his charge above referred to were calculated to convey the impression that, according to plaintiff’s testimony, the lien was filed in time; that there was no conflicting testimony on the subject, and hence he was entitled to a verdict for the full amount of his claim, unless defendant had, on other grounds, succeeded in making out a good defense — in other words, that the entire burden of proof was on defendant below. In that respect, the charge was misleading and erroneous, notwithstanding the unqualified affirmance of defendant’s first point.
In answer to the question, as to how long he continued to *501work on the building, plaintiff below said: “From time to time on this building until the spring of 1885, sometime along in— well, near June, I guess; I don’t remember now exactly; until May or June, I think.” If his impression, thus testified to, was correct the lien filed January 13, 1886, was too late. The testimony of defendant’s husband was to the same effect. In speaking of the time work under the contract was completed, he said: “Somewhere along in May or June, I think.” On the other hand, the testimony of plaintiff’s clerk, Zitzehnan, tended to prove that the last work was done in August, 1885; but it is not entirely clear whether he meant work under the contract, or the extra work specified in the bill $212.58, paid by defendant on November 5, 1885. In addition to the uncertainty, as to what was meant by the last named witness, the dates, given in the itemized bill referred to, tend rather to corroborate the testimony of plaintiff below and Galland, as to the time the work under the contract was completed. Their impression was that it was completed some time in May or June. If so, the lien was not filed in time.
Without expressing any opinions as to the weight of the evidence on the subject, it is very clear that it presented a question of fact solely for the consideration of the jury; and as such, it should have been submitted to them in such a way that they could not fail to regard it as a question upon which it was their duty to pass, and not as a fact about which there was no dispute.
It is unnecessary to notice the remaining specifications of error, further than to say they are not sustained. The rulings of the court therein referred to are substantially correct; and if it were not for the error already pointed out, the judgment should not be disturbed.
Judgment reversed and a venire facias de novo awarded.