¶1concurring in part and dissenting in part.
¶2I agree with the majority opinion except for the remand on the simple negligence issue. The opinion presupposes a duty owed by defendant to plaintiff, and a breach of that duty. Considering the clear language of the subscription documents (offer may be rejected, no guarantee of acceptance), I find no duty owed to plaintiff except to transmit his application timely, which was done.
¶3Reviewing the petition, I find no allegations of negligence because of defendant’s failure to call plaintiff on December 31, 1984, to advice him that his application had not been accepted; that theory is urged *497only in plaintiffs brief. I find that any duty to determine on December 31, 1984, whether plaintiffs application had been accepted was with plaintiff and his CPA rather than with defendant.
¶4I would affirm the judgment of the district court.
¶5BARRY, J., joins.