Reece

Originally, the plaintiff filed an action to recover the balance claimed to be due from the defendants on a contract to drill a water well at their mining installation. On the first trial, the court granted judgment to the defendants on their counterclaim against the plaintiff and appellant on the basis of his failure to drill the well to a depth of 400 feet in accordance with his contract. Because of the breach by Mr. Kennedy, the court then awarded the defendants a balance of $1,307.15, but it was in error as to the details going to make up the judgment; this court, in Kennedy v. Reece, 225 Cal.App.2d 717, 727 [ 37 Cal.Rptr. 708 ], reversed the judgment only insofar as the award of damages on the counterclaim was concerned, but affirmed it otherwise, as follows: “The judgment is reversed only as to the damages awarded on the counterclaim with directions to the trial court (1) to permit the defendants upon application to amend their counterclaim as to damages, and (2) to retry the case with respect only to damages on the counterclaim; the judgment is otherwise affirmed.”

Upon the going down of the remittitur, the trial court did permit the defendants to amend their pleading, and…