
    No. 18,188.
    Charles Bradshaw et al., Partners, etc., Appellees, v. J. A. Glasscock, Appellant.
    
    SYLLABUS BY THE COURT.
    1. Voluntary Payment — Induced by Fraud or Improper Conduct — May be Recovered Back. The general rule that a voluntary payment made under a mistake or in ignorance of law can not he recovered- bade has no application where the payment was not made with full knowledge of all the facts or where it was induced by the fraud or improper conduct of the payee.
    2. - Same. Plaintiffs were indebted to a real-estate agent for a commission. Upon the representations of the defendant that he was a partner of the agent they paid him the commission. Subsequently the agent sued them and recovered judgment for the amount of the commission on the ground that defendant was not his partner and had no authority to receive the-money. In an action by the plaintiffs against the defendant to recover back the money, it is held that a general verdict in their favor, which includes findings that the defendant never was a partner of the agent, that he had no authority to receive the money, that it was paid to him upon the representation that he was a partner, overturns his defense that it was a voluntary payment as well as his defense that plaintiffs are es-topped from maintaining the action because of their failure to pay the money into court and allow the question of partnership to be litigated between the agent and the defendant.
    Appeal from Sedgwick district court, division No. 1; Thomas C. Wilson, judge.
    Opinion filed December 6, 1913.
    Affirmed.
    
      John W. Adams, and George W. Adams, both of Wichita, for the appellant.
    
      S. B. Amidon, D. M. Dale, and Jean Madalene, all of Wichita, for the appellees.
   The opinion of the court was delivered by

Porter, J.:

The only question in this case is whether the defendant is entitled to retain a sum of money which the plaintiffs paid to him by mistake. Briefly stated, his contention is that it was a voluntary payment made by the plaintiffs with their eyes open, and that they are estopped to maintain the action.

C. M. Brotton, a real-estate agent in Wichita, effected a trade or exchange of properties for the plaintiffs, and they owed him a commission. The defendant represented to the plaintiffs that he was a full partner of Brotton and entitled ■ to share in all commissions in real-estate transactions. They paid him the sum of $512.50, to be in full for the commission, and took his receipt, signed “Brotton and Glasscock, by J. A. Glass-cock.” Subsequently Brotton sued them for the commission, alleging that the amount due was $1500. They set up as a defense that Glasscock was a partner, and that they had settled the account. In that action Brotton recovered the full amount for which he sued. The plaintiffs thereupon brought this action to recover from the defendant the money paid to him. The jury returned a general verdict in plaintiffs’ favor, and from the judgment the defendant has appealed.

Not having been a party to the former action, the defendant was not concluded by the finding of the jury to the effect that when the commission was earned the defendant and Brotton were not partners. On. the trial of this action the same question was litigated. The evidence was conflicting, and the defendant has abstracted it quite fully, but for what purpose we do not know. There is no claim that the verdict is not sustained by evidence.

While the defendant’s contention is not so stated in the briefs, it necessarily amounts to this:

“The general verdict is a finding of every controverted issue of fact against me. I did represent to the plaintiffs that I was a full partner of Brotton in the transaction. They paid me the money believing this representation. I never was a partner of Brotton in the transaction. Notwithstanding all this, I am entitled to retain the money because there was evidence tending to show that they knew when the money was paid that Brotton claimed there was no partnership and claimed to be entitled to the money. The payment was voluntary, and their failure to protect themselves by paying the money into court and permitting Brotton and myself to litigate the question of partnership estops them now from maintaining this action.”

The doctrine of voluntary payments can not aid the •defendant in his efforts to retain the money. That doctrine has no application except where the payment has been made with full knowledge of all the facts, and where it was not induced by any fraud or improper conduct on the part of the payee. (30 Cyc. 1313.)

Doubtless the plaintiffs could have saved themselves much annoyance and considerable cost and expense by paying the money into .court and permitting the question of partnership to be litigated between Brotton and Glasscock. But the defendant’s position has not in any sense been altered to his injury by their failure to avail themselves of this remedy; and therefore one essential element of estoppel is lacking.' According to the verdict of the jury he was paid by mistake money to which he was not entitled. It was paid upon a false representation of his; and neither the doctrine of voluntary payment nor estoppel is available as a defense in an action to recover money paid under such circumstances. (Lowe v. Wells, 78 Kan. 105, 112, 96 Pac. 74.)

The instructions of the court stated the issues fairly. Practically all the objections to them are based upon the mistaken theory that if the plaintiffs knew that both Brotton and Glasscock were claiming the money, that would'make the payment voluntary and prevent a recovery.

The judgment is affirmed.  