dissenting.
The practical effect of the primary factual determination by the trial court was that Mr. Luther sold 3,500 shares of stock to Loewi & Co., Inc. at a price at least $3,500 below the market price in exchange for a promise that Loewi would use its “best efforts” to make up the $3,500 loss plus another $3,500, but without any guarantee to even make up the $3,500 loss. I consider it to be illogical and highly unlikely that an intelligent investor would make such a stupid arrangement with his broker, and I further believe that if in fact such a one-sided deal was made, Loewi breached its ethical, if not its legal, responsibility to its customer.
These observations, coupled with the absolute admission by Anderson that a guarantee had been made, as set forth on page 4 of the majority opinion, and considering the equivocal nature of much of Mr. Anderson’s other testimony, cause me to believe that the trial court made a clearly erroneous factual determination concerning the oral agreement and that the judgment should be reversed.