made by them, as shown by the stated account rendered, to which there was no dissent, must be conclusive against Harmon Brothers. We think the complainant utterly fails to sustain this branch of his case. If there was any money in the hands of respondents, belonging to Harmon Brothers; or if the evidence established the fact that Lehman, Durr & Co. were properly chargeable with cotton, or the proceeds of cotton, for which they have not accounted, after the payment of any balance that might be due them from Harmon Brothers, such money should be credited on the debt secured by the mortgage, of January 26, 1886.

"Let us now consider the question of usury. If, upon consideration of all the circumstances, it should appear that the language used or the stipulations made were a mere devise to evade the statute against usury, to conceal the real intent, the mere form will not relieve the contract from the consequences of usury.' Swilley v. Lyon, 18 Ala. 552, per DARGAN, C. J. The intent is the test. Was it intended to compensate for risk, trouble, or expense incurred at the request of the debtor? or was it intended to give the creditor additional profit for the loan of money?' Was it reasonably expected that the 500 bales of cotton could be delivered by the Harmons? If not, Lehman, Durr & Co. could as easily have contracted for the payment of so much money as interest, as for the storage and commissions. Uhlfelder v. Carter's Adm'r, 64 Ala. 532. Did the respondents make the heavy outlay of $25,000 or $30,000, annually, in running their business as warehousemen, and in order to meet this expense, and to promote their interest as commission merchants, loan money and require a shipment of so much as tem bales on the $100 loaned? The witness Roman states and repeats that this expense is estimated and provided for after the money is loaned. He says: 'We regulate the fall business by the advances made in the spring. We engage such force as we think necessary from the amount of money advanced in the spring. The arrangements are made by May the 1st, for we can tell by that time how much cotton we can handle.' We do not think that a contract made in the spring, which is at the time usurious, can be purged of the taint of usury, because respondents incur large expense to enable them to carry out their part of the usurious contract. They contract to loan a man $100, for which he is to pay them eight per cent. interest, and, in addition thereto, make him agree to ship them bales of coton worth $400, or, in default thereof, pay as liquidated damages an amount equal to fifty cents per bale storage, and one and a half per cent. commissions; amounting to eleven per cent. additional to the legal rate; total interest, nineteen per cent. A shipment of three bales would pay the interest on the $100, yet the borrower is required to ship seven more bales; storage on the extra seven bales, $3.50; commissions, $4.20; total extra payments, $7.70,-or nearly double legal interest. This is usury, unless it be held that the expense incurred to serve the business of warehousemen and commissions merchants frees the contract from usury. Can this be done, when the facts are as stated by Mr. Roman? We regulate the expense after the money is loaned.' But, under the facts of this case, could Lehman, Durr & Co. have reasonably expected the shipment of 500 bales of cotton from the Harmons, including the cotton to be made by John F. Harmon? They did business with John F. Harmon & Son in 1884, and with all of them in 1885. They had very accurate information as to the means of these persons. In January, 1886, Harmon Brothers were not able to meet their past liabilities, and Lehman, Durr & Co. refused to lend them money, or to do business longer without security. Respondents were reasonably advised that from thirty to fifty bales was the extent of John F. Harmon's ability to ship. From what source was the 500 bales to come, which, at forty dollars per bale, required an outlay of $20,000? Respondents say that Harmon Brothers were to buy out some merchant or business at Union Springs. But how were they to buy out this large business? They were not then able to pay their indebtedness

to Lehman, Durr & Co. Their father was to mortgage his property to obtain a loan of $5,000. As prudent men, Lehman, Durr & Co. reasonably knew that the cotton (500 bales) would not be shipped unless they furnished the money to buy it with. No one else would loan them the money, for they were under mortgage, and in debt to Lehman, Durr & Co. The commissions to be paid are in excess of the usual rate of commissions charged in Montgomery. Whatever view we take of the transaction, we are of opinion that the contract was usurious, which required commissions and storage of cotton not shipped.

"The greatest difficulty is in determining the status of the seventeen bales sent to respondents by John F. Harmon on his wagons. This cotton was included in the mortgage, and the law would apply its proceeds to the credit of the mortgage debt, unless John F. Harmon has by some act waived his right to have it so applied. Mr. Durr was questioned as to this cotton. Question. The negro told you, didn't he, that he came from John F. Harmon's plantation? Answer. Oh, yes; he carried the cotton to the warehouse. Q. Didn't he say he came from J. F. Harmon's plantation? A. Well, he brought cotton from Mr. Harmon's, is about the way he stated it.' Mr. Gunter says that all the cotton was shipped in the name of Harmon Brothers, and for these seventeen bales refers to Exhibit D; but this exhibit evidently refers to other cotton. The letter of October 8th states that the seventeen bales of October 6th were shipped by railroad, for which Harmon Brothers held bill of lading. The other cottons mentioned in Exhibit D do not satisfy us that they were the cottons hauled in John F. Harmon's wagons. The respondents' testimony is not satisfactory as to these seventeen bales hauled from John F. Harmon's plantation, and we presume that they had reasonable knowledge that they came from his plantation. Has J. F. Harmon lost the right to have this cotton applied to the mortgage debt? Respondents say that it was received in the name of Harmon Brothers. Complainant says, in his deposition, that he sent Lehman, Durr & Co. twenty-four bales of cotton; sent a part by wagons, and my son sent a part by railway from Union Springs. I sent seventeen bales by wagon, for which they sent me back bills, or receipts, marked as "Exhibits O, P, Q, R."' These exhibits are dated September 30th, October 13th, November 5th, and November 10th, extending over a term of five or six weeks. All of them are for cotton on account of Harmon Brothers, and none of them on account of J. F. Harmon. Mr. J. F. Harmon testifies that some of his cotton had been shipped from Union Springs by his son. Why does he hold these receipts so long, and make no objection? and why permit his son to ship a part of the cotton? He may have been mistaken as to the financial condition of his sons. He may have had the utmost confidence in their financial ability and integrity, and supposed that they would see the mortgage debt paid; we cannot tell. But, having consented that Harmon Brothers might use the cotton for their own benefit, we are of opinion that Lehman, Durr & Co. should not suffer by reason of the fact that the cotton was included in the mortgage. If, however, Lehman, Durr & Co. have extended no further credit, or have not advanced any money upon this cotton shipped and received in the name of Harmon Brothers, then we see no reason why the cotton raised on the plantation of J. F. Harmon should not be applied to the mortgage debt. J. F Harmon identified the time of sending the seventeen bales by the Exhibits O, P, Q, R. Exhibit R is a receipt for five bales, and is dated September 30, 1886; Exhibit P is for two bales, and dated October 12th; Exhibit Q is for five bales, and dated November 5th; and Exhibit O is for five bales, and dated November 10th. By reference to the stated account of Lehman, Durr & Co., it will be seen that the least debit of Harmon Brothers was for the payment of their check for $700 in favor of the Bullock County Bank, and dated October 9, 1886. Harmon Brothers drew no money, and received no credit from Lehman, Durr & Co., because of the two bales

sent to them October 12th; five bales November 1st; five bales November 5th; and five bales November 10th,-identified by Patterson, Garland, and Covington. As to these twelve bales sent by wagons, Lehman, Durr & Co. have been no more damaged or injured by the receipt of this cotton, though sent in the name of Harmon Brothers, than if the same had been sent in expressly in the name of J. F. Harmon, with the directions to be applied to the mortgage debt. This being true, is there any equitable reason why the proceeds of the twelve bales should not be so applied? As for the seven bales shipped by his son from Union Springs, we have no dates given us, and cannot say, but judge from the account, that this shipment preceded the cotton sent by the wagons.

"The mortgage provides for the payment of reasonable attorneys' fees incurred in the collection by foreclosure of the mortgage or otherwise, and we regard this as a proper charge. There is a written agreement attached to the answer, and signed by complainant's solicitors, providing that respondents may be granted such relief as the facts of the case show they are entitled to, to the same extent as if set up in a cross-bill, and relief especially prayed. This would be allowable without such agreement. [McGuire v. Van Pelt,] 55 Ala. 345."

The chancellor therefore rendered a decree declaring that the defendants were entitled to a foreclosure of the mortgage for the amount of the note and interest, and to reasonable attorneys' fees for services rendered in the cause; disallowing their claim for storage and commissions on cotton not delivered, and charging them with the value of the 12 bales of cotton particularly mentioned in his opinion; and ordering a statement of the accounts by the register, and sale of the land by him, if the amount found due on the accounting was not paid within 40 days. From this decree the complainant appeals, and here assigns as error (1) "that the chancellor did not allow him all he claimed in his bill; (2) that the chancellor did not allow him credit for all the cotton raised on his plantation, and delivered to Lehman, Durr & Co.; (3) that the court allowed the respondents attorneys' fees for foreclosing the mortgage." Cross-assignments of error are also made by Lehman, Durr & Co., because the chancellor held the contract usurious, and refused to allow them storage and commissions on the cotton not delivered, as liquidated damages.

Arrington & Graham and Watts & Son, for complainant. Tompkins, London & Troy and Brickell, Semple & Gunter, for defendants.

SOMERVILLE, J. We have studied the record and the able opinion of the chancellor in this case with great care and interest, and the result is that we approve and adopt the chancellor's views in every respect save those hereafter noticed. We direct that his opinion in extenso be published in the report of our decision.

Both the testimony and the arguments of counsel tend to show that the inquiry whether John F. Harmon, or Harmon Bros., were principal in the debt to Lehman, Durr & Co. was deemed important in the preparation of this cause. We confess we are not able to perceive its importance. But if we concede its materiality, we are not able to discover its bearing on the case before us. It is manifest that the money raised was intended for and used by Harmon Bros., sons of John F. Harmon. It is equally manifest that Lehman, Durr & Co. refused to advance to Harmon Bros. on terms less binding than those demanded and acceded to. The terms were that John F. Harmon should give his note conjointly with Harmon Bros., they signing as a firm and as individuals, and that the former, J. F. Harmon, should execute the mortgage to secure a compliance with the terms of the note. The terms were acceded to, and the money obtained in the name of John F. Harmon, and immediately checked out by him in favor of Harmon Bros. The plain import of

all this is that, the requirements of Lehman, Durr & Co. being acceded to, the money was advanced to John F. Harmon as principal debtor, on the condition, and only on the condition, that all the other sureties and securities should be bound for its repayment. Lending one's name by acceptance or otherwise, with a consequent pledge of primary liability, without consideration or inducement other than a spirit of accommodation, is not infrequent in commercial transactions. In this case all the parties were bound as principals for the payment of the money to Lehman, Durr & Co. As between themselves, Harmon Bros. may have been bound to indemnify John F Harmon for any loss he suffered. And while, as a crop lien, under the statute once of force, it is possible the facts we have been considering might exert some influence, (on this question we intiinate no opinion,) considered as a mortgage, no question can arise growing out of the relations the parties sustain to each other under the facts disclosed in this record.

Lehman, Durr & Co. were warehousemen and commission merchants for the storage and sale of cotton on commission. As such they controlled a considerable amount of money, which it was their custom to advance to merchants and planters, as a means of increasing their business. Such, it was shown, was the general habit and custom of warehousemen and commission merchants throughout the country. Their plan was as follows: At the opening of the agricultural season they advanced to their customers a given sum of money, taking their notes for repayment, with interest from date, the payment to be made on some specified day during the next coming cotton season. The contracts contained the following additional stipulations That for every $10 so advanced, the merchant or planter, as the case might be, bound himself to deliver to them for storage and sale on commission one bale of cotton. And to the extent he might fail to deliver the number of bales stipulated, he bound himself to pay to them, as liquidated damages, storage for one month, and commissions for selling, the same as if the cotton had been received, stored one month, and sold by them. These additional stipulations, it is contended, are in their nature usurious; and it is further specially contended that it was and is usurious under the facts of this case. The chancellor disallowed these charges, holding that they were usurious. In this state, following the rulings of other courts, we have held that such contracts are not necessarily and per se usurious. If the person by whom the money is advanced is not engaged in the warehouse or commission business, and thus has no occupation which can be promoted by a compliance with its terms, such stipulation is but a cover for unlawful interest. Uhlfelder v. Carter, 64 Ala. 527. So, if the advance be made by a warehouseman or commission merchant, and there is no reasonable expectation or ground for believing that the customer can perform the stipulation, this furnishes the requisite evidence that compliance was not expected, and renders the contract usurious. On the other hand, if in entering into or obtaining such promise there is a reasonable expectation or ground for believing that such contract can be complied with, this relieves it of all stain and imputation of usury, and the stipulation, if made to a warehouseman or commission merchant, is binding. Dozier v. Mitchell, 65 Ala. 511; Woolsey v. Jones, 84 Ala. 88, 4 South. Rep. 190; Pollard v. Baylors, 6 Munf. 433; Cockle v. Flack, 93 U. S. 344; Matthews v. Coe, 70 N. Y. 239. The testimony in this case is very clear that there was no ground for believing that John F. Harmon, the mortgagor, would be able to deliver the 500 bales of cotton the contract bound him to deliver. He could have had no reasonable expectation of being able to deliver more than one-tenth of that quantity. But Harmon Bros., his sons, and for whose accommodation and use the money was obtained, were shown to be merchants engaged in business; and the testimony shows that they, in negotiating the advance, represented that they, in their business, would handle 800 bales of cotton; and whatever quantity their father failed to deliver they would deliver, so as to complete the 500

bales. This was sufficient ground for the reasonable expectation that the cotton would be delivered, and relieves the transaction of all imputation of usury on this account.

The stipulation in the mortgage to provide suitable storage, etc., is not an independent consideration, to uphold a promise otherwise illegal, or without consideration. Such service is incident to all lines of business or employ-* ment, and on its face indicates nothing which the relation itself does not impose as a duty. Pfeiffer v. Adler, 37 N. Y. 164; 1 Wait, Act. & Def. 95. There is one phase of this contract, however, which, in our judgment, stamps the transaction as usurious. The evidence shows that the usual charge in the city of Montgomery for selling consigned cotton was 50 cents per bale, where no money was advanced by the consignee. The price stipulated for in the present contract is a commission of one and a half per cent. on the proceeds of sale, which will aggregate from 67 to 75 cents per bale, or from 17 to 25 cents more than their usual charge, estimating the price of cotton at from 9 to 10 cents per pound, as it was shown to be by the testimony. It is sought to legalize this charge, which is from 34 to 50 per cent. more than the price of 50 cents, by showing that it was the customary price charged by commission merchants for selling cotton where they advanced money. The service to be performed in each contingency is precisely the same,--the sale of the cotton. It is no more trouble to sell when money has been loaned than when no money has been loaned. The thing to be charged for is the service rendered in making sale of the article consigned. The additional charge, therefore, from 30 odd to 50 per cent. for the service rendered cannot rest on the consideration of the service. There is nothing to support it but the loan of the money, for which lawful interest is also charged.

Usury is the "taking more for the use of money than the law allows." Woolsey v. Jones, 84 Ala. 88, 91, 4 South. Rep. 190. If the contract is usurious, no custom can legalize it, because no custom is good which is contrary to law. The lender, as we have often held, is not prohibited from charging an extra and reasonable amount for some incidental service, expense, or risk, additional to the lawful interest, other than for the loan of money. He may charge the usual storage and reasonable commission for selling consigned goods. Dozier v. Mitchell, 65 Ala. 511; Cockle v. Flack, 93 U. S. 344. He may charge reasonable commission, if engaged in the business of a commission merchant, for accepting bills of a customer, and providing funds for meeting such bills. This is a compensation for the service rendered in lending his credit and raising money to meet the debt of another, as in Brown v. Harrison, 17 Ala. 774, and cases of that class; Trotter v. Curtis, 19 Johns. 160, 10 Amer. Dec. 211. It is not the case of charging an additional bonus, over and above lawful interest, for the mere use of the money.

We conceive the law to be that, where the borrower of money agrees absolutely to pay commission for advancing money on goods consigned, in addition to lawful interest for the money, and based on no incidental service to be rendered by the consignee, the so-called “commission” is none the less for the use of the money because called by another name than interest. To be sustained as lawful and rescue the contract from the taint of usury, we repeat, this additional charge must be shown to be based on some service rendered, some trouble encountered, or inconvenience sustained, or risk assumed by the lender, other than the advance of money. Stark v. Sperry, 6 Lea, 411, 40 Amer. Rep. 47; Davis v. Garr, 55 Amer. Dec. 395, note and cases cited; Fanning v. Dunham, 5 Johns. Ch. 122, 9 Amer. Dec. 283. The charge, moreover, must be fair and reasonable, and the courts will scrutinize it with care, if suspicious, with the view of probing its true character. If it purports to be a charge for some incidental service to be rendered by the lender to the borrower, it must be a reasonable charge, adequate to the service, not extravagant or excessive, at the risk of being pronounced a mere cover for usury.