The majority view, concurred in by SAYRE, SOMERVILLE, GARDNER, and BOULDIN, JJ., is that charge 8, given at the request of the defendant in the following words:
"I charge you, gentlemen of the jury, that if you find from the evidence that the defendant had complied with all of the agreements made by and between the plaintiff and the defendant up to and including the date when said trucks were removed from the possession of the defendant, then the defendant was not in default and your verdict should be for the defendant,"
— is not subject to the criticism that it assumes that an agreement extending the time of payment of the first installment notes was made between the plaintiff and defendant that this question was left to the jury by this charge.
The only agreement under the evidence that would justify a verdict for the defendant is an agreement of extension of the time of payment, and as to whether such agreement was made the evidence was in sharp conflict, and the writer, ANDERSON, C. J., and THOMAS, J., adhere to the view expressed in the original opinion.
The majority view necessitates the granting of the rehearing and an affirmance of the judgment.
Rehearing granted and judgment affirmed.