delivered the opinion of this court.

The subject-matter of this case was, in another form, before this court at thé October term, 1906; appellant then being appellee now. The first case was affirmed without opinion, so we are left to conjecture the reasons controlling the court.

It is insisted that the former judgment is res adjudicata of this appeal. We think not, as there are reasons why the court may have decided that the matter set up in defense of that suit had not accrued to defendant at that time. However, we think substantial justice was attained by the judgment of the trial court in this case, and it is not clear that the former case adjudicated the natter here involved. Any other judgment than the one rendered below, it seems to us, would be unjust, and in direct conflict with the contract of the parties.

Affirmed.