This action was brought to recover the sum of $768 paid by plaintiff as a retail sales tax. Judgment went for defendant, and plaintiff how appeals therefrom.

The facts are undisputed, and the salient parts thereof appear in the following portion of the findings:

It was also stipulated that the only use to which said animals could be put was for bearing fur and reproducing their kind, and that during the month of June, 1939, for which period the tax was levied, the sales made by plaintiff were of live Chinchillas to breeders for breeding purposes only.

The question presented arises out of a construction of the Retail Sales Tax Act, section 2c, Stats. 1933, page 2599; Deering’s General Laws, Act 8493, which provides in part as follows:

It is the contention of appellant that the sale here does not come within the provisions of said act, for the reason that a sale of such animals was for breeding purposes only; hence, there was a sale for the purpose of resale, and such transactions were not subject to the tax. In support of its position, appellant insists that the retail sale occurs when the pelts of the animals and the pelts of the offspring are sold in the form of a fur coat. They urge that “with reference to the sale of animals for breeding purposes only, it is clear that the true value of such animals is contained in the sperm and ova in the animal at the time of sale, and that the purchase of the animal with the sperm and ova in them is therefore a purchase for the purpose of resale.” Respondent has the following answer to the foregoing contention:

We think the latter view is the correct one. The animals are purchased for a use, to-wit, the production of Chinchillas, and not for resale. The fact that they have within them the power to create other Chinchillas does not make the sale of the original Chinchillas a sale for resale. The question involved is the purpose of such a sale. It is not contended that the purchaser ever intends to sell the identical animal to others. The rather ingenious argument of appellant that a sale of the offspring is a resale of a part of the parents, conceding that it is based upon a scientific truth, cannot prevail over the admitted fact that a resale of the identical animals was not contemplated by the purchaser.

The case of Kirk v. Johnson, 37 Cal. App. (2d) 224 [ 99 P. (2d) 279 ], while not directly in point, tends to bear out the contention of respondent upon the controlling factor of the “purpose” of the sale, as that word is used in the act. We there said:

The sales come within the definition of the act, and the judgment is therefore affirmed.

Thompson, Acting P. J., and Steel, J. pro tern., concurred.