(coiicurring). The circumstance that my learned associates have reached adverse conclusions relative to the affirmance or reversal of the judgment under *501review and authoritative decisions are cited in support of each determination induces me to submit a brief explanation of my concurrence in the affirmance of the judgment.
The decision of this appeal seems to me to' involve in some measure a choice between a strict adherence to the so-called traditional doctrine of election of remedies and an adoption of. its modern decisional modification in cases of alleged fraud practiced in contractual transactions. I have particularly in mind elections between the remedy of rescission normally grounded upon a disaffirmance of the contract and the recovery of compensatory damages for deceit upon an implicit affirmance of the agreement. The majority and dissenting opinions in U. S. v. Oregon Lumber Co., 260 U. S. 290, 43 S. Ct. 100, 67 L. Ed. 261 (1922), are illustrative.
Tlic fact in the situation before us that the initial action was one for rescission attains significance in the consideration of the more recent adjudications.
My research has indicated to me that numerically the majority of the pertinent decisions would favor a reversal of the judgment here under review, while the rationalism of the decisions rendered in recent years recommends an affirmance. Compare, Simon & Diamond Coal & Lumber Co. v. Belz, 107 N. J. L. 193 (E. & A. 1930), with the avenues of reasoning in Adams v. Camden Safe Deposit & Trust Co., 121 N. J. L. 389 (Sup. Ct. 1938); Levy v. Massachusetts Accident Co., 127 N. J. Eq. 49 (E. & A. 1940); Schrage v. Liebstein, 16 N. J. Super. 384 (App. Div. 1951), certification denied 8 N. J. 431 (1952).
I united with Mr. Justice Brennan in the comments which, tiren as a judge of this Division, he made concerning the doctrine of election of remedies in his opinion in Schrage v. Liebslein, supra.
In the present case I perceive that essentially the actionable wrong for which some redress is sought is the fraud alleged to have been perpetrated by the defendants. In the former action it seems evident that it was merely determined that the plaintiff was not entitled to disaffirm the contract *502since by his course of conduct he had treated the contract as valid. Eraud or not was not resolved. It was the right of rescission that was considered and denied.
I am influenced by the fact that the commission of the alleged fraud was not determined on the merits in the previous action for rescission. Cf. Estelle v. Bd. of Ed., Red Bank, 26 N. J. Super. 9 (App. Div. 1953).
I therefore vote to affirm.