
    Callaway vs. Butler & Stephens.
    1. Where cotton, factors advanced a specified sum to a customer, for which they were to receive interest at the rate of eight per cent, per annum, and as a part of the contract the customer was to ship to them 300 bales of cotton by a given day, paying charges thereon at certain rates, including one and a half per cent, commissions, and on failure to ship the cotton or any part thereof, to pay one dollar and fifty cents per bale for each bale deficient, it was properly left to the jury to decide on all the facts whether or not these stipulations were a cover for usury, or whether they were an honest contract for a commission business in connection with the use of moneyo
    2* The charge of the court, taken as a whole, was a fair submissiCpa of the question.
    March 3, 1888.
    Factors. Interest and Usury. Commissions. Charge of Court. Before Judge Bower. Mitchell Superior Court. March Term, 1887.
    Reported in the decision.
    Walters & Arnheim, for plaintiff in error.
    R. Hobbs ; I. A. Busn, for defendants.
   Bleckley, Chief Justice.

This was a proceeding to foreclose a mortgage made by Callaway to Butler & Stephens to secure the paymeiit of several promissory notes made by Wright & Callaway to the mortgagees. Callaway was one of the members of tbe firm of Wright & Callaway. The notes were executed in renewal of other notes, or at least, of other contracts made touching the same debt. Tbe plea relied upon was usury, and the question as to usury arose out of the construction and effect of a “ cotton contract.” That contract was as follows:

“In consideration of the sum of $3,000 advanced to ns by Messrs. Butler & Stephens for tbe current year, 1885, we agree to ship to them at Savannah, Georgia, by or before February 1st, 1883, 300 bales of upland cotton for sale for our account; upon which we agree to pay all freight on tbe same, and tbe following charges: insurance, % ; storage, 25 cents per bale per month, all part thereof; drayage, per bale, 15 cents; weighing and delivery, per bale, 10 cents; commissions, per cent; and on failure to ship said 300 bales of cotton, or any part thereof, we agree to pay said Butler & Stephens 1 and 50-100ths for each bale deficient.
(Signed) Weight, Davis & Go.”

There was a failure to deliver some of the cotton, the amount for which, estimated at $1.50 per bale, being about $100, and it is contended that the notes to this extent are usurious; and whether so or not was the question contested in the court below on the trial of the case. The head-notes prefixed to this opinion announce the views we entertain upon this subject, and we rest them upon Hollis vs. Swift, 74 Ga. 595; MacKenzie vs. Garnett, Stubbs & Co., 78 Ga. 251; Cockell vs. Fleck, 93 U. S. 344.

Judgment affirmed.  