32 La. Ann. 793 | La. | 1880
The opinion of the Court was delivered by
The plaintiffs, constituting the Board of School Directors-of the parish of Union, instituted suit against J. E. Trimble, on the 22<5 of September, 1877, in which they sought to annul a settlement made
Another exception was filed, averring no cause of action ; there was a motion by defendant to compel plaintiffs to elect, on the ground that several inconsistent actions were cumulated in the same suit or demand. The motion to elect and the exception of no cause of action were overruled and the plea of prescription was sustained, and judgment dismissing the suit at plaintiffs’ costs. From this judgment plaintiff has appealed.
We find no error id the rulings of the court as to the plea of no cause of action and on the motion to elect. The question for our consideration and decision is, should the plea of prescription be sustained.
The defendant .contends that this is an action ex delicto, and that the prescription of one year applies thereto; that the settlement between the parties has the force and effect of a judgment, and that a suit to annul the settlement on the ground of fraud must contain the allegation that the discovery of the fraud was made within one year of the date of filing the suit, and that where error and fraud are alleged as to the settlement, the items of such error must be specifically alleged and proved.
This action is not in our opinion one which arises from an offense or quasi offense. It is brought to annul a settlement alleged to have been made in fraud and error, by which an officer of the School Board, who was virtually an agent of that Board and received and held funds for them subject to their control and disposition only, is charged with a responsibility and liability for those funds which are retained by him, and withheld from those rightfully entitled to them, under a settlement or transaction averred to be fraudulent and erroneous. The obligation of the defendant, independent of that created by his official bond, was
As we have before said, the cause of action herein is not ex delicto, but we regard it as being ex contractu, or on an implied oontract, and we are sustained in our views as to the non-applicability of the plea of prescription made by the defendant in this case. The case of Mulford vs. Wimbish, 2 An. 443, conclusively establishes the prescription which applies to actions for the nullity or rescission of agreements. The Court held : " The prescription established by article 2218 relates.to cases of ' error, fraud, or violence in agreements which are expressly included in it.” And “ this article 2218 relates to the action of nullity or of rescission of agreements, and provides that in all eases in which either action
In the case of Percy and others vs. White and others, reported in T Rob. 513, it appears that certain stockholders of the Planters’ Bank of Louisiana instituted suit against the defendants, who had been directors, of the bank, charging defendants with fraud and negligence in the discharge of their duties as directors, whereby the institution was ruined and the stock lost, and the Court held “this is an action of damages. ex contractu against mandatariesand, holding that more than ten years had elapsed since any act which proved injurious to the interests-of the stockholders, sustained the plea of prescription. See, also, T Rob. 369.
We think the lower court erred in sustaining the plea of prescription made by the defendant.
It is therefore ordered, adjudged, and decreed that the judgment of the lower court be annulled, avoided, and reversed; that the plea of prescription of one and two years be overruled, and that this case be-remanded to be proceeded with according to law, and that the appellee-herein do pay the costs of this appeal.