dissenting.
As a condition of their original bargain, appellant, hereinafter referred to as brokerage house, and appellee, hereinafter referred to as McKeehan, agreed that McKee-han’s trading account was not to go into the red, i. e., a deficit situation requiring additional funds to be submitted by McKeehan. If the brokerage house was prohibited by rule or regulation, or was otherwise unable to live up to such a condition, it should have advised McKeehan initially that such a condition was not acceptable. It. did not.
Additionally, after the first margin call (if not before, pursuant to their agreement) the brokerage house had the right to liquidate McKeehan’s account. The brokerage house’s failure to live up to its agreement and its failure to timely liquidate McKee-han’s account, as was its right, was the primary cause of most or all of McKeehan’s loss. Having failed to live up to their word and having failed to diligently pursue their remedies, they should not now be permitted to recover. For these reasons I respectfully dissent.