I concur in affirmance of the judgment, on the ground that, on the facts disclosed in the present record, defendant suffered no legal detriment by reason of the change in position by plaintiff. The judgment entered in the prior action was one based *288on an inadvertent default, of which defendant was relieved at his request. The contract presently sued on was one concerning which plaintiff was not obligated to do anything affirmatively by way of performance. Under it defendant indemnified plaintiff against partnership liabilities. Plaintiffs offer to surrender his rights under that contract was declined by defendant.
In the absence of some element of estoppel, plaintiff should be permitted to waive rescission and enforce the contract of indemnity. While I do not concur in the view that acquiescence in rescission, or the obtaining of a final judgment are always essential to a binding election, it is my view that under the present circumstances the beginning of an action based on rescission, which was subsequently discontinued, should not be deemed a conclusive election so as to deprive plaintiff of any relief. (5 Williston on Contracts [Rev. ed. 1937], § 1528, p. 4279.)
Untebmyer, J., concurs.
Judgment unanimously affirmed, with costs.