If there was in fact an agreement between O. D. Stewart, representing the defendant, and the witness Burgin, representing the plaintiffs, whereby the time of payment of the notes for the installment due June 15, 1925, was extended until the 10th of the following month, as some of the evidence tended to show, there was a full compliance with this agreement on the part of the defendant when the agreement was made, by defendant paying to the plaintiff $100 on an indebtedness not then due and payable. Such agreement, if it was made, became fully executed on the defendant's part, there being nothing further for her to do until the time for payment arrived under the new agreement. The only question, therefore, left open for the jury's determination, was whether such agreement had been made, not whether there had been a compliance therewith by the defendant.
When charge 8 is viewed in the light of the evidence as thus presented, it is in substance the affirmative charge in favor of the *Page 666 defendant, and in the opinion of the writer constitutes reversible error. The majority, however, are of opinion that the case has been properly decided, and that the application should be overruled; and it is so ordered.
ANDERSON, C. J., and THOMAS, J., concur in the foregoing dissent.