¶1 Dissenting Opinion.
¶2 delivered a dissenting opinion.
¶3 I am unable to perceive any difference of the evidence between the effect of Section 1946, Code of 1930, on that *298 portion of the note here sued on which represents the money collected by the appellee from persons to whom he had sold fertilizers for the appellant, and that which represents the value of the fertilizers appropriated by the appellee to his own use. In my opinion, the note violates the last clause of Section 1946 of the Code in whole or not at all.
¶4 The appellee’s contract with the appellant required him to “obtain cash from purchasers at the time of delivery to them of any of the said fertilizers” and to account to the appellant when called on so to do for all fertilizers “sold and on hand.” When called on for an accounting in June, 1938, the appellee had converted to his own use both the money collected for the fertilizers sold by him and the fertilizers which remained after the sales were made. ITe was therefore indebted to the appellant for the money so collected and for the valne of the fertilizers used by him. The aggregate of these two items was $433.04. The appellant deducted therefrom $46.32 allowed the appellee as commissions for handling the fertilizers which left him indebted to the appellant in the sum of $386.22. To this the appellant, through its agent, added 10 per cent thereof or $38.67, and $2.50 paid by the appellant for recording a deed of trust then given the appellant by the appellee.
¶5 If, as the appellee claims, this 10 per cent added to the appellee’s indebtedness to the appellant was interest thereon, the rate thereof, because of the short time the note had to run, exceeds 20 per cent per annum, and therefore violates the last clause of Section 1946, Code of 1930. If, as the appellant claims, the parties agreed in good faith that the fertilizers delivered to the appellee by the appellant for sale by him for the appellant should be considered as having been sold to him at credit prices, then no usury appears in the note. Which of these contentions is correct is a question of fact to be decided from the evidence, as to which the evidence is in direct conflict. That for the appellee supports the former and that for *299 the appellant supports the latter. The chancellor accepted the evidence for the appellee-, and it cannot be said from the evidence that he was manifestly wrong in so doing. Consequently, his decree should he affirmed.