UPON REHEARING.
SUrijmottii
March 24, 1932.
Present, Campbell, C. J., and Holt, Epes, Hudgins and Chinn, JJ.
Chinn, J.,delivered the opinion of the court.
The petition upon which this rehearing was granted *456questions the accuracy of the former opinion in this case, upon the ground that in holding that Bott waived the misrepresentations made by plaintiffs representative, Etheridge, the court overlooked the principal facts in reference to the question of waiver, and misapprehended the law applicable thereto.
In view of these assertions, we have made a critical reexamination of the record, and, after further consideration of the evidence and the legal questions involved, are forced to the conclusion that Bott not only waived the misrepresentations in question, but, in fact, did not rely upon them as an inducement to enter into the contract which is the basis of this action.
The only misrepresentations alleged in the pleadings are, that Etheridge falsely led Bott to believe that the property he was to take in part payment for the Westover Terrace Apartments was in good condition; that the property was occupied and the tenants had renewed their leases, and that the property was rented for a larger amount than it really was.
It appears, however, from the evidence of Bott’s own witnesses and office employees, S. W. Cromwell and Miss Sutton, and that of Bott himself, that after Etheridge made the alleged misrepresentations and before he signed the contract, Bott inspected the several properties in question ip. order to satisfy himself in regard to them. Bott testified that when Etheridge submitted the written offer to him, they discussed the proposition in his office, and he then decided to go with Etheridge to look at the property.
“Q. Did he ask you at that time to enter into the written agreement 'with him?
“A. Yes, he wanted me to sign the contract before. He waíhted me to make the deal before I went to see the property, and I told him I would not do that.
“Q. What reasons did you give him for not wanting to do that?
*457“A. Because I didn’t know the condition of the property and the leases on it.”
It was testified by Etheridge and another witness who accompanied them on this tour of inspection (which we do not find to have been denied by Bott), that as they went around Bott expressed his opinion as to the value of several of the properties and what it would cost to put them in good tenantable condition. It is true that Bott says he did not see inside several of the apartments because the tenants were not at home, or because he did not care to look at them, and did not interview the tenants he saw as to their leases, but according to his own statement at the trial he found several of the tenancies unoccupied. It was not until after all this was done that Bott signed the contract, It therefore seems manifest that Bott was not relying on what he claims Etheridge told him about the property, but on his own judgment as to its condition and rental value.
In the case of West End Co. v. Claiborne, 97 Va. 734, 751, 34 S. E. 900, 906, Keith, P., said: “The principle is equally well settled, but somewhat more difficult of application in practice, that a party induced to enter into a contract by misrepresentation must be justified in relying upon it under all the circumstances. If, after a representation of fact, however positive, the party to whom it was made institutes an inquiry for himself, has recourse to the proper means of obtaining information, and actually learns the real facts, he cannot claim to have relied upon the misrepresentation and to have been misled by it. Such claim would simply be untrue. The same result must plainly follow when, after the representation, the party receiving it has given to him a sufficient opportunity of examining into the real facts, when his attention is directed to the sources of information, and he commences, or purports, or professes to commence, an investigation. The plainest motives of expediency and *458of justice require that he should .be charged with all the know edge which he might have obtained had he pursued the inquiry to the end with diligence and completeness. He cannot claim that he did not learn the truth, and that he was misled. 2 Pomeroy’s Eq. Jur., section 893.” Hawkins & Buford v. Edwards, 117 Va. 316, 84 S. E. 654.
One who alleges fraud must prove the allegation by clear and convincing proof. The charge cannot be sustained by doubtful and uncertain testimony. Scott v. Scott, 142 Va. 31, 128 S. E. 599; Meadows v. Meadows, 143 Va. 98, 129 S. E. 354.
But even if it were conceded that the representations were proved as alleged, and that Bott relied, or has the right to rely, upon them under the circumstances, he plainly waived them by his subsequent course of conduct in regard to the entire transaction. As stated in the opinion heretofore handed down, if he intended to repudiate his agreement with the plaintiff in regard to commissions, on the ground of fraud, it was incumbent upon him to act promptly on the discovery of the fraud by bringing home to the plaintiff knowledge of such intention. This he did not do. On the contrary, the undisputed evidence shows that after the execution of the contract Bott employed an attorney (Mr. Ernest Dyer) to examine the titles to the properties he was to take; gave Mr. Smith, attorney for Dóctor and Mrs. Thacker, the necessary information to start the examination of his title to the Westover Terrace Apartments, and some time later requested Mr. Smith to have the Thirteenth street property conveyed to a corporation, which request was refused by Smith for the reason that under the contract Bott was to assume the liens thereon. In fact, although the contract was executed on June 25th, neither the plaintiff nor any of the other parties interested received any intimation from Bott that he intended to repudiate the contract on any ground until Mr. *459Smith was informed by Mr. Dyer on July 28th—a few days before the contract was to be consummated—that “the deal was off, and would not be closed.”
The further claim made by Bott that the plaintiff is not entitled to recover his commissions because Etheridge “guaranteed” the title to the Thacker property, and it is defective, as held in the prior opinion, is also without merit for the reason that Bott waived all such defects by offering the purchasers a deed to the Wes to ver Terrace Apartments without his wife’s signature. It is argued that while this might constitute a waiver of defects, so far as the Thackers are concerned, it was not a waiver as to the plaintiff.
Whatever else may be said, this action on the part of Bott plainly precludes him from refusing to pay plaintiff the compensation he contracted to pay him, on the ground that the plaintiff had “guaranteed” the titles and they had proved to be subject to defects. Upon the discovery of the alleged defects in the titles, Bott had the right to elect whether he would refuse to perform the contract, or whether he would go through with it. Having chosen the latter course, he is bound by it, both with respect to his obligation to the plaintiff and the performance of his contract with the purchasers.
“A party cannot, either in the course of litigation or in dealings in pais, occupy inconsistent positions. Upon that rule election is founded; a man shall not be allowed, in the language of the Scotch law, To approbate and reprobate.’ And where a man has an election between several inconsistent courses of action, he will be confined to that course which he first adopts; the election, if made with knowledge of the facts, is itself binding, it cannot be withdrawn without due consent; it cannot be withdrawn though it has not been acted upon by another by any change of position. Bigelow on Estoppel, page 733.” Arwood v. Hill’s Admr., 135 Va. 235, 117 S. E. 603, 606.
*460It is argued that Bott tendered a deed without his wife’s signature, not with the purpose of going through with the contract, but because he knew the purchasers would not accept it. This position does not affect the rights of the plaintiff in the premises. The fact is that the purchasers performed their part of the contract of sale by tendering the cash payment and a deed with general warranty of title, signed by Doctor and Mrs. Thacker, subject only to the liens on the property which Bott had agreed to assume. With Bott’s motives in tendering a deed without his wife’s signature plaintiff had nothing to do. Having produced a purchaser ready, able and willing to buy, even though his right to recover commissions depended upon that contingency, he had done all that could be required of him, provided he was not guilty of fraud or bad faith in procuring the contract. For the reasons stated, Bott cannot defeat recovery on that ground. It is, therefore, clear he is entitled to the compensation provided by his contract with Bott.
It is true that under the general rule Bott was entitled to a marketable title to the property he agreed to take from the Thackers, and upon this theory the trial court improperly left the determination of this question to the jury, whereas it was one for the court. Since, however, Bott waived all defects in the title, it is unnecessary for the purposes of this case that this court pass upon that question. We therefore wish to be understood as expressing no opinion upon it.
Complaint is made that the trial court misdirected the jury in telling them that “the fact that Mrs. Thacker did not sign the contract is immaterial in this case,” and that “the fact that Mr. Bott’s wife had not signed the contract is immaterial in this case.” According to the view we take of the case both of these instructions were plainly right, for the reason that Mrs. Thacker actually executed *461the deed which was tendered on the day fixed for the consummation of the contract, and the fact that Mrs. Bott did not sign the contract did not release Bott from its performance with respect to either the completion of the proposed sale or the payment of the compensation he thereby agreed to pay the plaintiff for his services.
In view of the conclusions expressed, we adhere to the former opinion of this court, in so far as it holds that the plaintiff is entitled to recover the amount sued for, and that the judgment of the trial court should be reversed and final judgment entered here for the plaintiff in error.
Reversed.
Epes, J., dissenting.