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owners of a tract of land in Kansas City, Missouri. Taber furnished the purchase price of the land. Robinson was to furnish all material and labor in erecting nine houses and was to pay for all street improvements and to furnish all necessary funds to erect the houses, and on the completion and sale of the houses, Taber was to receive $9,200.00 as his full share and interest in the whole transaction, and to accept payments under the following contract:

"Two-thirds of the second mortgage paper received from the sale of the above described property up to the amount, and not to exceed Nine thousand two hundred dollars, and in event that two-thirds of the second mortgage paper does not amount to $9,200.00 the balance to be in cash.

"James T. Robinson agrees to collect all money paid in on the notes turned over to Geo. C. Taber from the sale of the above described property, and remit to him the 1st of each month the entire life of notes given, free of charge."

On August 2, 1908, the respondent called upon John R. Wolf, assistant cashier of the appellant at Lanark, Illinois, and told Wolf that he had some notes and collaterals and wanted to arrange to borrow some money on these notes; that they were at Kansas City and secured by mortgages; that a Mr. Robinson had been and was collecting the monthly instalments as they became due, and was sending the payments to him; that for Wolf to investigate the matter and that a William Hess who resided in the city was well acquainted with Robinson; that he could see him and that he could write and find out the character of the man, how he was, etc. About two weeks thereafter, respondent met Wolf and it was arranged between them that a loan should be made to the respondent; that the bank would accept the collateral notes, and as they were paid the amounts received would be indorsed upon the respondent's obligation to the bank. On September 7, 1908, a letter was written by Wolf and signed by Taber, addressed to Robinson at Kansas City, which is as follows: "I have talked with J. R. Wolf asst. cashier with whom I am depositing all my notes as collateral and have concluded the best way will be for you to send (all my notes in your

Opinion of the Court-Budge, J.

hands) to me at Twin Falls, Idaho. I will endorse them and forward them to Exchange State Bank Lanark then they return them to you for collection the same as I have done and you receipt to Bank instead of me. I enclose your receipts. Please forward notes at once and Oblige.'

In pursuance to the above communication, Robinson forwarded the collateral notes to Taber at Twin Falls, who indorsed them and then sent them to the Exchange Bank at Lanark, and by the bank they were forwarded to Robinson at Kansas City.

It appears that in the construction of nine houses upon the land purchased by Taber, the material was bought from the Belt Line Lumber Company, that within two months after Robinson received the collateral notes from the Exchange Bank, the Belt Line Lumber Company filed notices of materialman's liens, and, in order to avoid foreclosure, Robinson turned over the collateral notes sent to him by the appellant, to the Belt Line Lumber Company in adjustment of its claim, in order to protect the land and houses formerly owned by Robinson and Taber, and which formed the basis of their contract of settlement heretofore referred to. The application of the collateral notes in the adjustment of the Belt Line Lumber Company's claim was not known positively by either the appellant or respondent until November 21, 1911, at which time Robinson wrote a letter to Taber, addressed to Twin Falls, Idaho, in which he admitted in substance, that he had used the collateral notes as above stated. For some time after the collateral notes were diverted by Robinson, he continued to make payments to the bank according to the provision of the collateral notes, first regularly and latterly at irregular periods, and finally ceased to make any payments. The appellant and respondent, as shown by numerous exhibits, persistently urged Robinson to make collections of the collateral notes.

In December, 1911, Taber went to Lanark for a conference with Wolf, which resulted in Wolf making a visit to Kansas City to see Robinson. There is evidence in the record that Taber agreed to go with Wolf. He did not do so. Wolf met

Opinion of the Court-Budge, J.

Robinson in Kansas City and made a conditional settlement with him, and then returned to Lanark where he immediately afterwards met Taber. A day or so following, the notes agreed in the settlement to be given by Robinson and his brother, W. S. Robinson, were received by mail at Lanark. The notes were made payable to Taber, who thereafter indorsed the notes and left them with the appellant as collateral security. In the settlement between Taber and the bank, it appears that there was $504.49 still due on the larger of the two notes given to the bank by Taber on September 7, 1908, which is one of the notes in this action. Thereafter Taber returned to Twin Falls.

Upon the trial it was agreed that there was an error in the amount for which Robinson gave his notes at the time of the settlement made in Kansas City of $400. The trial was had before the court with a jury and a verdict was rendered in favor of the respondent in the sum of $3,924.07. This appeal is from the judgment.

Numerous errors are assigned by appellant. The first is that the court erred in holding that the respondent was entitled to open and close the argument to the jury. It rests in the sound discretion of the trial court to direct the order of addressing the jury, and unless there is a clear abuse of discretion this court will not disturb the verdict. (Sec. 4383, Rev. Codes; Goodpaster v. Voris, 8 Iowa, 334, 74 Am. Dec. 313; Shaffer v. Des Moines Coal etc. Co., 122 Iowa, 233, 98 N. W. 111; Brunswick & W. R. Co. v. Wiggins, 113 Ga. 842, 39 S. E. 551, 61 L. R. A. 513; Day v. Woodworth, 13 How. (U. S.) 363, 14 L. ed. 181; Hall v. Weare, 92 U. S. 728, 23 L. ed. 500; Lancaster v. Collins, 115 U. S. 222, 6 Sup. Ct. 33, 29 L. ed. 373; Florence Oil & Ref. Co. v. Farrar, 109 Fed. 254, 48 C. C. A. 345; 38 Cyc. 1300.)

The second assignment is that the court erred in giving the following instruction to the jury:

"You are instructed that if you believe from the evidence in this case, when the notes sued on were originally made or had indorsed thereon by agreement of the parties at any time after making, an agreement or indorsement to the effect that

Opinion of the Court-Budge, J.

the same were not to be collected from the defendant, and that thereafter said notes or either of them were altered without the knowledge, authority or consent of the defendant, by cutting from said notes such indorsement, then such an alteration would be material, and the plaintiff cannot recover upon said notes, and your verdict should be for the defendant." The notes sued upon in this action are set out in full in the complaint. The answer of the respondent admitted the execution and delivery of the notes to the appellant. The respondent did not affirmatively allege in his answer or counterclaim that the notes had been altered in any respect. The alteration of the notes was not an issue in the case. The general rule is that a note which has been altered is not void unless the alteration is material and was made subsequent to its delivery and without the consent of the parties liable. Where a note appears to have been altered in a material respect, the onus is on the party seeking to enforce the payment to show that it is not void, but where the respondent in his answer and counterclaim in express terms admits the execution and delivery of the notes which are set out in full in the complaint, and when introduced in evidence were in the same condition as they appeared in the complaint, the respondent should not be permitted to introduce evidence tending to establish any alteration, nor should the court instruct the jury upon the law governing the alteration of written instruments. It will be presumed that the alteration was made before the execution of the instrument. The above instruction as given by the court, was clearly prejudicial error. (14 Ency. Pl. & Pr. 656; Kleeb v. Bard, 12 Wash. 140, 40 Pac. 733; 1 Standard Ency. Proc. 822; 2 Am. & Eng. Ency. Law, 2d ed., 185.)

The appellant calls attention to the court's refusal to give instruction No. 5 requested by the appellant, which is as follows:

"In the handling of securities placed with it, the plaintiff was required to exercise only ordinary diligence, and before you will be justified in finding for the defendant on his affirmative defense, or on his counterclaim, it must be estab

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lished by the evidence that the plaintiff was grossly negligent in handling such securities, and that if it had used reasonable diligence it could have collected the amounts due on said collaterals, and unless you find that through the gross negligence of the plaintiff the defendant was in fact damaged, then the defendant has failed to establish his affirmative defense and counterclaim."

This instruction seems to be within the rule announced by this court in the case of Murphy v. Bartsch, 2 Ida. 636, 23 Pac. 82. It is impossible to prescribe any definite rule applicable to every case of property pledged as collateral security; each case must be determined by the attendant facts and circumstances, rather than by any iron-clad rule, but in view of the peculiar circumstances surrounding this case, it would have been eminently proper for the court to have given this instruction.

The next error that we will consider relates to the refusal of the court to admit certain evidence offered by the appellant touching the disposition of the collateral security sent to Robinson by the bank and by Robinson diverted. There is evidence in the record which shows that these collateral notes had been used by Robinson for the express purpose of protecting the business interests of the respondent and Robinson. If this was true and the respondent had in truth and in fact received the benefits of the collateral security either in whole or in part by the payment of certain debts that were liens on the property formerly owned by respondent and Robinson, and out of which respondent expected to realize upon the collateral notes, appellant should have been permitted to introduce any testimony that might establish the application of the proceeds of the collateral notes to the benefit of the respondent. This testimony would have been admissible, if for no other reason than for the purpose of reducing damages.

We are of the opinion that the court erred in admitting respondent's exhibit No. 15, a letter of August 1, 1912, written by Taber to Wolf. This letter was self-serving and immaterial. It had reference to a business transaction that had been for some considerable time closed and fully settled.