(concurring in part). I respectfully dissent on the point of prescription upon the following grounds: i
(1) Where the unlawful act of one person simply damages another without resulting benefit to the wrongdoer, there is a simple tort, and the action for reparation is prescribed by one year. C. C. 3536.
(2) But where the unlawful act of one person not only .damages another but also enriches the wrongdoer, there arises an action both ex delicto and quasi ex contractu, and the action to recover the unlawful gain is barred only by the prescription of ten years. See Kohn v. Carrollton, 10 La. Ann. 719; Pickerel v. Fisk, 11 La. Ann. 277; Devot v. Marx, 19 La. Ann. 491; Normand v. Edwards, 23 La. Ann. 142; Gaty, McCune & Co. v. Babers, 32 La. Ann. 1091; McKnight v. Calhoun, 36 La. Ann. 408; Burney v. Ludeling 47 La. Ann. 73, 16 South. 507 (and authori*445ties). See, also, C. C. 2292, 2294, 2301, 2315, 3508, 3509.
(3) And where a person has conferred on him several remedies to enforce an obligation, he has the right to select which of those remedies he will follow, and if he chooses, may waive his action ex delicto and pursue his action quasi ex contractu. See Morgan’s La. & Tex. R. R. & S. S. Co. v. Stewart, 119 La. 392, 44 South. 138.
Otherwise I concur.
Rehearing refused.