Olwell v. Nye & Nissen Co.

Supreme Court of Washington · 1946 · Property

PropertyRestitutionUnjust Enrichmentpropertyexclusive usewrongful useconversionwaiver of tort

Facts

When plaintiff sold his interest in Puget Sound Egg Packers to defendant, he retained ownership of an "Eggsact" egg-washing machine, which defendant promised to make available for delivery. Plaintiff stored the machine near defendant's premises, but defendant's treasurer, without plaintiff's knowledge or consent, removed it from storage and used it in defendant's business beginning May 31, 1941, about one day a week for three years. Plaintiff discovered the use in early 1945 and, after failed sale negotiations, brought this action seeking $25 per month for defendant's unauthorized use. The trial court found that use of the machine saved defendant about $10 for each day it was used.

Issue

May the owner of personal property waive a tort remedy and sue in quasi-contract for restitution when the defendant wrongfully used the property and thereby saved expense? If so, is recovery measured by the defendant's profit from the wrongful use rather than by the machine's market or rental value, subject to the amount prayed for in the complaint?

Rule

Where a tortfeasor has benefited from a wrong, the plaintiff may elect to waive the tort and sue in assumpsit for restitution based on a duty imposed by law to repay unjust enrichment. A benefit includes saving the defendant from expense or loss. When the defendant was consciously tortious in acquiring the benefit, the plaintiff may recover the profit derived from the defendant's subsequent use of the property; however, recovery cannot exceed the amount demanded in the prayer for relief.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Portland, Nora Kim owned a commercial grape press that she kept in a warehouse while deciding whether to open a juice business. Without asking, Cascade Valley Foods, Inc. moved the press into its plant and knowingly used it every Friday for two years, saving substantial hand-processing costs, then returned it undamaged when Nora discovered the use.

If Nora elects to sue in assumpsit for restitution rather than in tort for damages, what is the strongest basis for recovery?

Explanation. The majority held that a plaintiff may waive the tort and sue in assumpsit where the defendant benefited from wrongful use of the plaintiff's chattel. A benefit includes being saved expense, and the plaintiff's loss lies in the invasion of the right to exclusive use, even if the chattel was idle, undamaged, and the owner was unaware of the use.