The petition for rehearing in this case informs us that prior to our decision (323 F.2d 696 (5th Cir. 1963)) the claim -of the plaintiff was settled. Our decision was based upon the representation that this was a partial appeal, because the issue of damages remained for determination by the district court. However the settlement, of which we were not made aware, left nothing pending in the district court.

We therefore grant the petition for rehearing and withdraw the previous decision. Approaching the case on the merits, we reverse the judgment of the lower court and remand the matter for trial of the issues raised by the counterclaim. Robbins v. Milner Enterprises, Inc., 278 F.2d 492 (5th Cir. 1960); Braniff v. Jackson Avenue-Gretna Ferry, Inc., 280 F.2d 523 (5th Cir. 1960); Stanley v. Guy Scroggins Const. Co., 297 F.2d 374 (5th Cir. 1961).