delivered the opinion of the court.

By § 3342, code 1892, a privilege tax of ten dollars is levied ‘‘ on each public cotton seed buyer, except merchants in their legitimate business. ’ ’ The appellee was a merchant, and had paid the proper privilege tax on his store. In his legitimate *351business as a merchant, he purchased cotton seed on account from customers to whom he had sold goods as a merchant, and this, we are of opinion, he was entitled to do as an incident to the legitimate prosecution of his mercantile business. That business was the sale or barter of his goods and wares to others. But the evidence clearly shows that the appellee not only bartered goods in his mercantile business for cotton seed, and bought cotton seed on account from customers indebted to his store for goods theretofore sold by him as such merchant, but, also, that he bought seed wherever he could, and sold to fill contracts with others, and to any buyer from him who would pay the best price. 'He bought from the public generally, and he thus purchased to sell again in the best market. He was, in so buying and selling, a public cotton seed buyer, and was not a merchant bartering goods for cotton seed, or buying cotton seed on account from customers indebted to him for goods theretofore bought from his store, as incidental to and proper in the legitimate business of a merchant, as such.

A peremptory charge should have been given for defendant below.

Reversed.