majority">ClaeKSON, J.

The question involved:

(1) This is an action on contract, set forth in the complaint, wbicb provides that the plaintiff was to havé one-half of the profits arising from the sale of a tract of land “provided a satisfactory sale can be made within 12 months from date.” The plaintiff contends that he produced a number of purchasers, ready, able and willing to buy at a price and on terms that were satisfactory to him and that would have proven satisfactory to both if accepted by the defendant, but that the defendant arbitrarily and fraudulently refused to accept said offers of sale for the purpose of defeating the plaintiff of his rights under the contract.

(2) The defendant set up the plea of res judicata. We think the nonsuit should not have been granted by the court below, and there was sufficient evidence to be submitted to the jury, and the principle of res judicata is not applicable.

An action on the contract involved in this controversy was tried in Henderson County and from a judgment of nonsuit therein the plaintiff appealed to the Supreme Court, which was confirmed at the Fall Term, 1928 (see Ingle v. Green, 196 N. C., 381), )on the ground that the plaintiff did not allege fraud or arbitrariness. Thereupon the plaintiff brought this action in March, 1929, alleging fraud and arbitrary action, as set forth in the complaint before mentioned.

In Ingle v. Green, supra,this Court said “There is no allegation . that the defendant acted fraudulently or arbitrarily in refusing to sell.” In the present action the complaint is full, plenary and explicit on this subject. Graves v. O’Connor, post, 231.

In Hampton v. Spinning Co., 198 N. C., at p. 240, we find: “If the Supreme Court affirms the judgment of the trial court, he may under C. S., 415, bring a new action within the period therein specified. But, if upon the trial of the new action, upon its merits, in either event, it appears to the trial court, and is found by such court as a fact, that the second suit is based upon substantially identical allegation and substantially identical evidence, and that the merits of the second cause are identically the same, thereupon the trial court should hold that the judgment in the first action was a bar or res adjudicata, and thus end that particular litigation.” Midkiff v. Insurance Co., 198 N. C., 569; Chappell v. Ebert, 198 N. C., 575.

It will be noted that in the Hampton case, supra, are these words: “that the second suit is based upon substantially identical allegation and substantially identical evidence.” The present action is not based upon substantially “identical allegation.” In the former action there *154was probata without allegata. There must be allegata et probata. In the present action there is allegata et probata.

In Moses v. Morganton, 195 N. C., at p. 101, it is said: “ ‘A decision by the Supreme Court on a prior appeal constitutes the law of the case, both in subsequent proceedings in the trial court and on a subsequent appeal. Harrington v. Rawls, 136 N. C., 65.’ Strunks v. R. R., 188 N. C., at p. 568.”

As the case goes back for a new trial, there are other questions raised by the able and learned attorneys for the litigants that we need not now consider.

For the reasons given the judgment of the court below is

Reversed.

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