delivered the opinion of the court.
The trouble with appellant’s case is its utter collapse on the facts. The action is one to recover damages for the breach of a contract providing for the sale of one thousand tons of good, sound cotton seed only, at $16.75 per ton, to be delivered between October, 1902, and April, 1903. Pour hundred and fifty-six tons were shipped and paid for up to November 26, 1902, and $3,168.60 is the amount of damages alleged to have been sustained by the Gloster Oil Works by reason of the change in the market price and breach of the contract referred to. The defendant (appellee), on November 26, 1902, declined to take or receive any more seed, upon the ground that the seed were not *624good, .sound cotton seed (the seed shipped at that time), and that they were known to be not of the quality called for by the contract, and yet shipped by the appellant so knowing. The defenses requiring notice are, first, that the plaintiff did not comply with its contract in shipping the quality of seed stipulated for, and that it could not have done so; and, second, that the only way in • which the plaintiff attempted to fulfill •the contract, or could possibly have fulfilled it, if at all, was by buying the cotton seed in the open market and selling them to the defendant, and that, in fact and in truth, the plaintiff was engaged in buying and selling cotton seed, and yet had never paid the privilege tax of ten dollars required for such business, and that the contract in this case was made with reference to such business so carried on in disregard of the statute imposing the tax, and that the seed which had been shipped (four hundred and fifty-six tons) embraced all of the good, sound cotton seed owned by the plaintiff when the contract was made.
A demurrer to this last defense set up by the third plea was properly overruled. If the facts sustain the plea, it was a good defense. It is perfectly clear, from this record, that the plaintiff was a cotton-seed buyer within the meaning of our statute; that it had never paid the privilege tax required by law; that it was constantly buying cotton seed and selling them; that the cotton seed on hand when the contract was made could not possibly have furnished the amount of good, sound cotton seed with which to comply with the contract; that the cotton seed which plaintiff desired to ship — a part of which he did ship — were damp and sappy, and had gotten so hot that they smoked and burned, through his shoes, the feet of one standing on them, and created such noxious odors as to produce sickness in the neighborhood; that the plaintiff must have known the condition of these seed, and, as a consequence, "must have shipped the last lot it did ship defendant with a full knowledge of the unsound condition of the seed. Indeed, the proof overwhelmingly shows, not only that-*625the seed which plaintiff desired to ship, and the only seed it had on hand to ship, were utterly unsound and unfit to make oil, but that all the cotton seed about that section of the country during that season were unsound, sappy seed. There is not one particle of proof in the record that the plaintiff did ship, or could have shipped, cotton seed of the quality contracted for. Indeed, both the manager (Mr. Merrin) and the president (Mr.' Barney) expressly testified that the only way they could have gotten any seed, sound or unsound, with which to fulfill this contract, was to have gone into the market and bought them. Mr. Barney very candidly testified as follows: That he expected to fill the contract in any way he could get the seed; that he did not think that he was confined to any particular market, but that he would have been compelled to buy seed in the market to fill the contract. Perhaps a stronger case of the utter worthlessness of the seed shipped and knowledge on the part of the shipper of such condition can hardly be imagined than the evidence this case discloses. It is perfectly idle, in view of the testimony, to talle about the ability of the plaintiff to fulfill the contract.
It is equally unavailing to say that the Grloster Oil Works was an oil mill, and had the right to buy seed for its use as an oil mill. That is perfectly true; but it is equally true that -if, besides conducting its business as an oil mill proper, it did the other distinct business of buying and selling cotton seed, it was liable for the privilege tax on this last business, as held in the Louisiana Union Cotton Oil Company case, 52 La. Ann., 357 (26 South. Rep., 766), decided in 1900. And the distinction attempted to be set up — that the Grloster Oil Works was not buying cotton seed, but selling cotton seed, and hence it was not liable for the privilege tax — is disposed of by the case of Johnson v. Jennings, 72 Miss., 319 (16 South. Rep., 791). The court in that case said: “The appellee bought seed wherever he could, and sold to fill contracts with others and to any buyer from him who would pay the best price. lie bought from the public generally, and he thus pur*626chased to -sell again in the best market. lie was, in so buying and selling, a public cotton-seed buyer.” We adhere to that definition of a cotton-seed buyer subject to a privilege tax.
So far as the law of the case is concerned, the modifications of plaintiff’s instructions were all correct, and he got, .under instruction No. 3, all that the court could possibly have given. That instruction was in these words:
“If the jury believe, from the evidence, that the plaintiff was able, willing, and ready to ship to defendant the balance of the one thousand tons of good, sound cotton seed, out of seed not purchased in the business of á buyer and seller of seed for profit, and stipulated for in the written contract of October 16, 1902, which were not shipped, from the seed which they had on hand_ when the contract was made, or from those purchased afterwards and before November 26, 1902, when defendant refused to receive more seed, or from such good, sound cotton seed as plain'tiff might have purchased thereafter with which to fulfill the contract, and that plaintiff would have shipped said balance but for defendant’s refusal to receive more seed, then the jury will find for plaintiff, awarding it, in addition to the $40.60 mentioned in another instruction, such damage as they may believe, from the evidence, plaintiff has sustained.”
It is useless to protract the opinion. The effect of the testimony is to leave the plaintiff without a vestige of a case.
Affirmed..