The opinion of the court was delivered by

The only rulings assigned for error in this case are the instructions given, and an instruction refused. Some of the instructions given are, perhaps, as abstract propositions, subject to slight criticism, but under the facts of this case, we think they are all correct. It is admitted that Struve, the defendant in error, plaintiff below, did the work for which he sued, and that he was entitled to recover either from Haak, the plaintiff in error, defendant below, or from Keller, the full amount for which he sued. The only substantial question presented to the jury was whether Struve did the work for Haak or for Keller. There was ample evidence to show that the contract of employment was made between Haak and Struve personally, and that Keller was the mere foreman and agent of Haak. But if Keller was not a mere foreman or agent of Haak, but was a contractor to .do the work himself, still there was sufficient evidence to show that Struve was justified in believing, as he did, that Haak was the principal who was having the work done, and that Keller was merely his foreman and agent. But it is hardly necessary to consider the instructions given, for they were not properly excepted to. There were six separate instructions, and they were excepted to as follows: “To the giving of which instructions, . . . the defendant at the time objected, and duly excepted.” This exception was hardly sufficient. (Bard v. Elston, 31 Kas. 274, 276, and cases there cited; The State v. Wilgus, 32 id. 126, 129, and cases there cited.)

We think the instruction refused, if properly construed, is good law, but its substance was given in other instructions. If, however, the instruction should be construed to .mean that *329the plaintiff could not recover unless the contract was made personally with Haak and not with his agent Keller, that would make the instruction erroneous; or if it should be construed to mean that the plaintiff could prove the contract only by his own evidence, and that none of the defendant’s evidence could be taken into consideration for that purpose, that would also make the instruction erroneous.

"We think no material error was committed, and therefore the judgment of the court below will be affirmed.