#### ELLING O. WEEKS, DOING BUSINESS AS WEEKS SUPER CARBURETOR CO., v. THE UNITED STATES

[No. H-515.

Decided June 16, 1930]

*Mr. Alex Koplin*for the plaintiff.

*Mr. Ralph C.*Williamson, with whom was *Mr. Assistant Attorney General Merman J.*Galloway, for the defendant.

*Mr. Artlvwr J. lies*was on the brief.

*377GkeeN, Judge,

delivered the opinion of the court:

Plaintiff in this case is a manufacturer of a patented device intended to be attached to the manifold of carburetors used in connection with internal-combustion engines. The purpose of the device was to insure the more complete re-•atomizing or vaporizing of the fuel used in such engines, thereby making it easier to start the engine and insuring more perfect combustion, by which the amount of power which might be obtained from the engine would be increased. The device was primarily designed for use on engines for airplanes, but is equally adapted for use on any kind of a combustion engine and was in fact used on tractors, motors for mining, sawing wood, motors used for running mowers, so-called baggage mules, and internal-combustion engines used on automobiles and trucks. Plaintiff made and sold this supercarburetor in various sizes and in more than one type. One of these types was adapted for use on certain models of the Ford automobile by being made in such form that it could be easily attached to the manifold of the engine • of that model. Plaintiff issued an advertisement showing how this type of the supercarburetor could be attached to the •manifold of the Ford car or the Ford engine wherever used, and in the advertisement was a statement to the effect that the use of the super carburetor would result in a much greater mileage being obtained from a given quantity of gasoline used in the engine. This type was equally adapted for use upon any internal-combustion engine having a manifold of the same size as that used upon the Ford engine. It does not .appear from the evidence how many of this type of carburetor were sold or to what engines they were attached. *378The other type or types and sizes were attached to gas engines used in a number of different hinds of machinery other than automobiles or trucks. The evidence does not show how they were attached to the gas engines upon which they were used, nor does the evidence show whether any of these types or sizes were sold to be attached to engines used in automobiles.

The plaintiff paid a tax on all of the supercarburetors which he manufactured during the period in question in the case, and having filed a proper claim for refund, now sues to recover the amount so paid.

There are four matters which appear in the evidence and which taken together, we think, entitle the plaintiff to judgment : (First) the article sold was a special patented device for a special purpose; (second) it was not primarily designed for use upon automobiles; (third) it was equally adapted for use in connection with nearly every kind of gas engine and was in fact attached to and used on a large number thereof in different kinds of machinery other than automobiles; (fourth) plaintiff paid taxes on all of the sales of the supercarburetor regardless of the use to which it was put. We do not think the fact that one type of the super-carburetor was advertised as adapted for use on certain models of the Ford engine is sufficient to make the plaintiff liable for the whole or any of the tax, as the evidence shows that this type was equally adapted for use on other engines not a part of an automobile or truck, especially when the evidence fails to show how many of this type were so sold, or to what engines they were attached.

The case is in line with that of the *Milwaukee Motor Products, Inc.,*v. *United States,*66 C. Cls. 295, and the decision is clearly controlled by the opinion in *Universal Battery Co.*v. *United States,*rendered by the Supreme Court May 26, 1980 [281 U. S. 580], in which it was said:

> “ Certainly it would be unreasonable to hold that articles equally adapted to a variety of uses and commonly put to such uses, one of which is use in motor vehicles, must be classified as parts or accessories for such vehicles.”

It follows that plaintiff is entitled to judgment as prayed in his petition.

*379Williams, *Judge;*Littleton, *Judge;*and Booth, *Chief-Justice,*concur.

This case was tried before the appointment of Whaley, *Judge;*he therefore took no part in its decision.