The contract in this case was substantially completed by the 7th day of April, 1873, but a trifling amount of work was done under it on or about the 27th day of September, 1873. No reason appears in the case for this long delay of nearly six months. In the recent case of Flint v. Raymond, argued at the present circuit, {ante, page 510,) this court held, that there must be no unnecessary or unreasonable delay in completing a contract after it has been substantially performed, and that the lien must be filed within sixty days after such completion if a party wishes to avail himself of the benefit of the lien given by the statute. The difference between the two cases seems to be, that in that case an attempt was made to show a reason for the delay, and in this case no reason appears. But the fact must affirmatively appear, that there was no such unnecessary or unreasonable delay, for the burden of proof is upon the petitioner to bring his case within the provisions of the statute.
It is difficult to imagine a reason that would justify so long a delay in fully completing a contract after it had been substantially completed. The courts of New York hold, on a statute similar to ours, that the lien must be filed within sixty days from the substantial completion of the contract. There is good reason for such requirement. Up to such completion, a person purchasing the property would be put upon his guard, but afterwards there would be nothing to inform him that a -lien was intended to be placed upon the property. In construing our statute we are disposed to be a little more liberal with mechanics and material men, but they should understand that any delay under such circumstances is dangerous.
There is manifest error in the judgment complained of} and it is reversed and the cause remanded.
In this opinion the other judges concurred.