Devoe & Raynolds Co. v. Robinson

109 So.2d 226 (1959) DEVOE & RAYNOLDS CO., Inc., v. M. J. ROBINSON. No. 21150. Court of Appeal of Louisiana, Orleans. March 2, 1959. *227 Cook & Stringer, New Orleans, for defendant-appellant. Normann & Normann, New Orleans, for plaintiff-appellee. McBRIDE, Judge. Plaintiff sued defendant for recovery of certain moneys the latter embezzled and was awarded judgment for $695 as prayed for, from which defendant has appealed. The only assignment of error submitted by appellant before us is that the trial court erred in overruling his plea of prescription of one year which he reurges. He takes the position that the action is one in tort, and argues that whereas the suit was filed more than one year after the acts complained of, the prescription of one year provided by LSA-C.C. art. 3536 as for offenses and quasi offenses is applicable. There is no merit in the contention thus advanced. Clearly this is not an action based on an offense or quasi offense. The petition specifically alleges that defendant was the credit manager of plaintiff, and in that capacity made certain collections for its account and the funds so received were never turned over to plaintiff. The evidence is in support of these allegations. The character given by the plaintiff to his pleadings and the form of his action govern the prescription applicable thereto. In view of the averments that there existed the fiduciary relationship and a breach of trust, the suit falls in the category of an action ex contractu to compel compliance with the implied obligation of defendant to return the money unduly taken, and the prescription of one year provided by the above codal article is inapplicable. Kramer v. Freeman, 198 La. 244, 3 So.2d 609; State v. Younger, 206 La. 1037, 20 So.2d 305. The judgment appealed from is affirmed. Affirmed. REGAN, J., absent.