delivered the opinion of the court.

As there was evidence in the cause that Clifford was a subcontractor under Ragan & Farrar, he was primarily liable for the board of the laborers employed on that portion of the road he had undertaken to build. The first instruction given for the plaintiff is based on the assumption that Ragan & Farrar were primarily liable, which is not warranted by the evidence. It was for the jury to determine who was primarily liable. Had Ragan & Farrar made themselves liable in the first instance for the board, the instruction would have been correct; but as the case was developed in evidence, the court was not warranted in throwing the burden of proof on the defendant. As it stood, it was the duty of the plaintiff to show that the defendant had made himself liable. The mere circumstance that Ragan & Farrar had the contract on section nine of the Pacific Railroad, was not sufficient to warrant the assumption that they were personally liable for the board of hands employed to work upon it, especially as there was evidence of a sub-letting by them.

With the concurrence of the other judges, the judgment will be reversed and the cause remanded.