Indemnity Insurance v. Sampson

MARKS, J. This is an appeal from a judgment entered in favor of J. A. Isaacson after his general demurrer to plaintiff’s complaint had been sustained without leave to amend.

At all times material here Isaacson was referee in bankruptcy of the United States District Court, Southern District of California, Southern Division. He appointed Robert K. Sampson receiver and trustee in bankruptcy in the twenty estates in bankruptcy involved here. Plaintiff became surety for Sampson in each of those estates. Because of embezzlements from them the surety had to pay about sixteen thousand dollars to the referee in bankruptcy who succeeded Isaac-son in that office. Plaintiff sought to recover from Sampson the total amount misappropriated, and from Isaacson a lesser amount, in the embezzlement and use of which it is alleged he participated.

The complaint contains twenty causes of action. As each involves the same principle we find it necessary to summarize the allegations of but one of them.

The foregoing facts are alleged in detail, as is the corporate existence of plaintiff. It is alleged that Sampson, embezzled and misappropriated to his own use money belonging to the estates coming into his possession; that Sampson and Isaacson conspired and colluded together to misappropriate [121]funds of the estates to their own use; that all checks on estate funds drawn by Sampson were countersigned by Isaacson, who knew that the funds withdrawn by such checks were being misappropriated and converted; that plaintiff repaid the money so embezzled to such estates under the terms of its bonds; that in the estate of Walter J. Carr, a bankrupt, Sampson issued four checks in the total sum of $341.42, all countersigned by Isaacson; that two of those checks were payable to Sampson and two to Isaacson; “that all of said checks were spurious cheeks and were wrongfully issued without any value or consideration, and were cashed by the said defendants and the money realized therefrom was misappropriated and converted by said defendants to their own use”; that Sampson collected $25 belonging to the estate which he appropriated to his own use and which he did not account for, and that he also received $13.73 as trustee’s fees in excess of the amount to which he was legally entitled. No recovery was sought against Isaacson for these latter amounts.

Counsel for Isaacson seek to support the judgment on two principal grounds. First, it is urged that when plaintiff paid the defalcations it extinguished the liability of its bonds and can maintain no action upon them other than against its principal, Sampson, under sections 2847 and 2848 of the Civil Code and the authority of Yule v. Bishop, 133 Cal. 574 [62 Pac. 68, 65 Pac. 1094]. Second, it is urged that if the action be considered as one in tort there can be no contribution between joint tort-feasors; that as plaintiff must stand in the shoes of its principal, Sampson, it can claim no contribution from Isaacson, who must be regarded as a joint tort-feasor.