Opinion of the Court

(in connection with the other facts) also shows that this transmission was not primarily adapted for use as a component part of an automobile.

When the transmission was installed in a car, the purchaser acquired a new transmission in addition to the one already therein. Whether the result was an improvement in operating the car is not disclosed, but considering the total expense in the cost of the transmission with installation and the fact that there was already a transmission in the car which was workable and practical, it would seem that there would be little demand for the Jumbo transmission merely to have a different kind with which to operate the car, that when so used it was more for the purpose of obtaining a portable power plant than for any added convenience in operating the automobile, and that it was so designed. Be this as it may, when there were thousands of Model T Ford engines lying detached in all parts of the country, it is quite plain that the principal demand for the transmission would be for use in connection with these detached engines as a stationary power plant. For this purpose they were not merely equally adapted, but far better adapted than for use as a part of the car for automotive purposes. In this connection it will be noted that it required only slight mechanical skill to connect the transmission with an engine separate from the car in such a manner that it could be used as a power plant. Most farmers who have the skill needed for making the necessary adjustments in farm machinery would be able to make the attachment.

The evidence shows that the Jumbo transmissions were sold with certain attachments when they were ordered or the manufacturer had reason to believe they were to be used for a particular purpose. There were three kinds of these attachments, one kind apparently being used when the transmission was to be made a part of the car. The defendant contends that when so sold, the transmission with attachments being intended for use in an automobile, it became a taxable accessory or part and that as there is nothing to show how many were so sold there can be no

Opinion of the Court

recovery in the case. We do not think this follows. The evidence does not show just what these attachments were, but whatever they were they did not do away with the necessity for the precision operations that we have described above or the alterations and changes necessary to be made in the chassis of the car. The evidence shows that the transmission itself was a unit, was equally adaptable for many other purposes, and was so used. If the purchaser chose to add some other attachments, we do not think it alters the situation so far as the taxability is concerned. Moreover, the evidence does not show what these attachments were or the particular purpose which they served, but it does appear that even when they were furnished the precision operations and alterations and changes in the chassis, to which we have before referred, had to be made by a skilled mechanic and could not be accomplished by an ordinary repair man. In other words, the purchaser had to adapt the car to the transmission before it could be used and even when it was installed it seems probable that his primary purpose in so doing was rather to obtain a portable power plant than to improve the operation of the automobile.

We think that when the regulations are applied to the facts in the case it clearly appears that the sales of the Jumbo transmissions were not taxable.

As a special defense in the case it is contended on behalf of the defendant that no right of action existed on behalf of Eric S. Ekstrom as trustee for the stockholders of the Mechanics Machine Company and that even if such right did exist the present plaintiff was improperly substituted by this court and the petition should be dismissed.

The theory advanced by defendant is that after the dissolution of the corporation all pending litigation was abated. This is contrary to our decision in the case of Oberndorfer v. United States, 65 C. Cls. 376, and also contrary to a number of Illinois decisions holding that where a corporation has brought suit within the two-year period prescribed by the statute for winding up its business it may be prosecuted to judgment after the expiration thereof.

Opinion of the Court

In support of the argument of defendant, the case of Oklahoma Gas Co. v. Oklahoma, 273 U. S. 257, is cited, but we do not think it is applicable. It is said in the opinion with reference to statutory authority for the prolongation of the period

The matter is really not procedural or controlled by the rules of the court in which the litigation pends. It concerns the fundamental law of the corporation enacted by the State which brought the corporation into being.

The defendant, however, concedes that the Illinois law is as above stated. R. S. 955 (28 U. S. C. A. 778) provides that when a party to any suit dies pending final judgment and the cause of action survives at law the executor or administrator may prosecute the suit to final judgment, and the Supreme Court said in Baltimore & Ohio RR. Co. v. Joy, Admr., 173 U. S. 226, 229:

Whether a pending action may be revived upon the death of either party and proceed to judgment depends primarily upon the laws of the jurisdiction in which the action was commenced. If an action be brought in a Federal court, and is based upon some Act of Congress, or arises under some rule of general law recognized in the courts of the Union, the question of revivor will depend upon the statutes of the United States relating to that subject.

Under the rule laid down above it is clear that Mrs. Ekstrom is the party to continue the present action.

We also think that the court acted in pursuance of the general rule that a court of equity will not permit a trust to fail for want of a trustee, and by permitting the wife to continue the suit in effect treated her as a successor to her husband in the trusteeship. It may be conceded that under the common law and the Illinois law a trustee successor to Mr. Ekstrom could have otherwise been appointed to maintain this action. But no successor was appointed. If Mrs. Ekstrom be not allowed to continue this action and it is dismissed the trust will fail, although it is conceded that Mrs. Ekstrom now has title to the trust property. It is true that the successor in title to trust property may not be

Opinion of the Court

qualified or be a proper party to administer the trust, and in such cases a court of equity will displace such a trustee with one selected by the court; but it is also the rule that the court may in some circumstances refuse to appoint a substitute and in Bogert on Trusts (1935 Edition) Sec. 529, p. 1679, we find the following:

Where, for instance, the only remaining duty is to distribute the trust property among the beneficiaries according to a prescribed schedule, no special qualifications are required for the task, and hence no appointment [of a new trustee] will be made.

Perry on Trusts (Seventh Edition) Sec. 344, p. 586, goes farther and shows that the executors will take the trust property and while they are not obliged to execute the trust they may do so. The same work is authority for the rule that the executor or administrator of a trustee may continue an action, which is supported by numerous authorities. When this court recognized the right of the administratrix of the trustee to continue the suit, it merely carried out the principles of equity and justice following its former decision.

Laches in the application for the substitution of the present plaintiff in the place of the original trustee is also set up as a defense. We think it is a sufficient answer to say that the defendant has in no way been prejudiced thereby and that by proper action on its own part the proceedings could have been hastened.

Our conclusion is that the plaintiff is entitled to maintain the action and to recover with interest the amount of taxes in controversy erroneously collected in accordance with this opinion and the findings of fact. Judgment will be suspended awaiting a stipulation of the parties as to the amount due in accordance with the opinion of the court, or if the parties cannot agree they may file their respective computations and the court will determine the amount. An equated date may be used as the date from which interest will run if the parties so agree.

WHALEY, Judge; WILLIAMS, Judge; LITTLETON, Judge; and BOOTH, Chief Justice, concur.

Reporter's Statement of the Case

ALLEN POPE v. THE UNITED STATES

[No. K-366. Decided December 6, 1937. Certiorari denied by the Supreme Court, March 28, 1938]

On Fourth Motion for New Trial

Jurisdiction.-Where fourth motion for a new trial is based on allegations of fraud, and the record relied on to establish the allegations is in most respect the record before the court in previous hearing, the court is without jurisdiction to grant a new trial. See Allen Pope v. U. S., 81 C. Cls., 658. U. S. v. Throckmorton, 98 U. S. 61, differentiated.

The Reporter's statement of the case:

Mr. Allen Pope, pro se.

The motion for a new trial was overruled in the following per curiam opinion:

Allen Pope, the plaintiff in the case of Pope v. United States, 76 C. Cls. 64, files a fourth motion for a new trial. The court in 81 C. Cls. 658 discussed in extenso the grounds for overruling a third motion containing substantially the same allegations of fact as appear in the present motion.

The allegations of the present motion, i. e., fraud, perjury, and deliberate suppression and perversion of facts, as well as deletion of the printed record, constitute most serious accusations against government officials, and we are not to assume that they have been made without due and careful consideration.

In the trial of the case the record disclosed constant and vigorous disputation between the plaintiff and government officials during the progress of the contract work. The court did not discover the presence of fraud, perjury, etc., now insisted upon, notwithstanding the apparent hostile attitude of the parties toward each other and the existence of the charges at the time of trial.

The plaintiff has contended all along since the decision in his case for an opportunity to prove the serious charges he makes, aside from the contentions to this effect originally