' The opinion of the Court of Appeals states that the facts disclosed on the last *353 trial are different from those presented and considered upon former appeal. 224 Ala. 667, 141 So. 641. Assuming this statement to be true, which we must do, the holding of said court is not shown to be in conflict with the opinion of this court in 224 Ala. This conclusion renders it unnecessary for us to consider and pass upon the correctness of the comment by the Court of Appeals as to the Virginia Case (Riverside & Dan River Cotton Mills, Inc. v. Waugh, 117 Va. 386, 84 S.E. 658) or our own case, Southern Railway Company v. Plott, 131 Ala. 312, 31 So. 33.

Writ denied.