filed the following dissenting opinion.
The majority, in holding that the government, and not the contractor, was the ultimate consumer of those “experimental missiles” which had been made and tested by the contractor before the contract was abruptly terminated and abandoned by the government, based their conclusion on the belief that the real purpose of the contract was to produce “a series of completed missiles with optimum flight characteristics.” I disagree because it is my belief that the contract, instead of being “something of a hybrid,” was clearly one for the performance of services (according to the explicit terms of the contract itself) in conducting “a research and development program which will result in the development to completion of a weapon system,” including (but not limited to) the design and manufacture of full-sized structural models of experimental missiles for study and testing. But mass production was not contemplated until a model had been finally accepted by the government.
As I read the contract, the transfer from Hagerstown to Cape Canaveral of fifteen of the model missiles that had been inspected and accepted by the government from time to time to be flight tested at a “full-scale mock-up of the operational weapon system,” in which Fairchild was required to participate under the scrutiny of the Air Force, was nothing more than a phase of the whole experiment program to develop a model of a missile acceptable to the government. In fact, the only purpose of the flight testings was to obtain such informa*261tion as to performance as might be useful in perfecting later models of the missiles.
Under the cost-plus contract, it is a fact, of course, that title to the expendable model missiles was in the government, but in reality the cost of the models was only a part of the total contract price. And while the flight testing of the models was an integral part of the contract, it is apparent that the making of the models was merely incidental to the completion of the experimental contract.
In United Aircraft Corp. v. O’Connor, 107 A. 2d 398 (Conn. 1954), where the Supreme Court of Connecticut had before it contracts to render experimental engineering services, similar to the one we have here, the Court there declared (at p. 402) that “[v]iewed in their broadest aspect, the contracts were dearly for the rendition of skilled engineering services, and the delivery of items of tangible personal property, fabricated into engines, was, at most, only incidental to the services rendered, [and the] delivery of such property is not a sale at retail under the act if it is merely incidental to a special service performed for the purchaser.” And, while it is true that the same Court in United Aircraft Corp. v. Connelly, 140 A. 2d 486 (Conn. 1958), under a substantially different factual situation from that in the O’Connor case, stated (at p. 491) that “the products of the so-called experimentation [in the Connelly case] were the tangible personal property delivered to the government and were the end and primary objective of the government,” the Court, nevertheless, specifically affirmed the taxability of materials to the user when the furnishing of the end product called for by the contract for experimental services was merely incidental to the furnishing of such services.
It is also significant to note that Professor Jerome R. Helerstein—in the article entitled “The Scope of the Taxable Sale Under Sales and Use Tax Acts; Sales as Distinguished from Services,” 11 Tax. L. Rev. 261, 283—in stating that the holding in the O’Connor case “appears open to question” unless the service classification is applied to special order contracts generally, definitely did not condemn the holding, and, on the contrary, admitted that the reasoning of the Court had *262“a .persuasive appeal.” Furthermore, it appears that a prior opinion of the Attorney General of Maryland is also in point. See 35 G. A. G. 285, where Judge Hammond (who was then the Attorney General) in an opinion concerning the status of a contractor performing services under an “experimental contract, containing the usual “title-in-government” clause, stated (at p. 287) that the contractor was “in reality (certainly as to most of the materials purchased), and within the purpose of the contract, the ultimate consumer.”
In the instant case, where the only contractural requirement as to delivery was that the contractor should “complete the [stated experimental] work and deliver the data called for” by a specified date, I am unable to agree that the government was the ultimate consumer of the experimental missiles when there is nothing in the contract requiring delivery of such missiles to the government either at the time the flight tests were mocked-up or when the contract was completed by the contractor or was sooner terminated or abandoned by the government.
I would reverse the judgment of the lower court and reinstate the ruling of the Comptroller disallowing the claim for refund.