Master A property owner may waive the tort of conversion and recover, in restitution, the value of the benefit the wrongdoer derived from unauthorized use of the chattel. with this comprehensive case brief.
Olwell v. Nye & Nissen Co. is a cornerstone remedies and restitution case that demonstrates the power of the election-of-remedies doctrine and the distinct focus of unjust enrichment. Instead of tethering recovery to the plaintiff's loss, the court allowed the plaintiff to focus on the defendant's gain from a willful, unauthorized use of the plaintiff's personal property. By doing so, the court ensured that a wrongdoer could not profit from wrongful use simply because the owner's measurable loss was small or difficult to prove.
For law students, the case is a vivid illustration of how restitution differs from tort damages. It highlights that a plaintiff can "waive the tort" of conversion and seek the value of the defendant's benefit—here, labor costs saved by use of the machine—rather than the diminution in value or rental value of the chattel. The decision is heavily cited in courses on Remedies and Restitution/Unjust Enrichment for its clear articulation of the "value-to-the-defendant" measure and its deterrence rationale.
26 Wash. 2d 282, 173 P.2d 652 (Wash. 1946)
The plaintiff, Olwell, owned an egg-washing machine that he had left in a building used by the defendant, Nye & Nissen Co., an egg-processing company. Without permission, the defendant removed a partition concealing the machine and proceeded to use it approximately one day per week for about three years. The use was kept quiet—reportedly occurring on Sundays—to avoid detection. Olwell had not authorized any use, had previously offered to sell the machine, and received no rental or other compensation. The machine's operation saved the company about one worker's labor per day of use, valued at roughly $10 per day. When Olwell discovered the unauthorized use, he demanded compensation. He then sued, electing to waive the tort of conversion and instead sought recovery in quasi-contract for the value of the benefit the defendant obtained from using his machine. The amount claimed reflected the defendant's savings: about $10 per day for roughly 156 days of use, totaling $1,560.
May the owner of a chattel, wrongfully used by another without consent, waive the tort of conversion and recover in restitution the value of the benefit to the wrongdoer (measured by savings or gains from the use), even when the owner's own loss or the rental value is less or difficult to quantify?
A plaintiff whose property has been wrongfully used may elect to waive the tort and sue in quasi-contract (assumpsit) for restitution of the unjust enrichment realized by the wrongdoer. In such an action, the proper measure is the value of the benefit to the defendant—i.e., the gains or cost savings attributable to the wrongful use—rather than the plaintiff's loss, market rental value, or the property's sale price. Willful trespassers and converters are not permitted to retain profits or savings derived from their wrongs.
Yes. The plaintiff could recover, in restitution, the value of the benefit obtained by the defendant from its unauthorized use of the machine. The appropriate measure was the value-to-the-defendant of that use—here, the labor cost savings—calculated at $10 per day for approximately 156 uses, totaling $1,560.
The court emphasized that unjust enrichment focuses on stripping the wrongdoer of benefits wrongfully obtained, not compensating the plaintiff for loss. The defendant's use of the egg-washing machine was willful and clandestine, and it yielded a clear, quantifiable benefit: the company avoided the cost of one worker's labor for each day it used the machine. That avoided cost—$10 per day—represented a direct measure of the enrichment attributable to the wrongful use. The court rejected the notion that recovery should be limited to either the owner's actual loss or the machine's rental value. Such a limitation would permit a calculated wrongdoer to profit whenever the owner's loss was negligible or hard to measure and would undermine deterrence. Nor did the plaintiff's prior willingness to sell or the absence of a rental agreement cap restitution; the defendant could not convert an unauthorized use into a coerced sale or rental on favorable terms to itself. Restitution aims to prevent a wrongdoer from profiting from wrongdoing. Measuring recovery by value-to-the-defendant effectuates that aim, ensures disgorgement of wrongful gains, and avoids turning the courts into instruments that reward surreptitious takings. Because the record established both the frequency of use (approximately one day per week for about three years) and the value of labor saved per day ($10), the court approved recovery of $1,560 as the appropriate restitutionary measure.
The case is frequently taught to illustrate: (1) election of remedies—permitting a plaintiff to waive tort damages and seek quasi-contract recovery; (2) the core restitution principle that the measure may be the defendant's gain rather than the plaintiff's loss; and (3) the policy of deterring willful trespass and conversion by denying wrongdoers any net benefit from their misconduct. It is a canonical example of the value-to-the-defendant measure in unjust enrichment and a foundational authority in Remedies and Restitution courses.
It means the plaintiff elects not to pursue traditional tort damages for conversion (which focus on the plaintiff's loss), and instead brings an action in quasi-contract (assumpsit) to recover the value of the defendant's unjust enrichment from the wrongful conduct. The measure of recovery is the defendant's gains or savings, not the plaintiff's lost value.
The court used a value-to-the-defendant measure: the cost savings realized by the defendant from using the machine. Evidence showed the machine saved about one worker's labor per day of use, valued at $10. The defendant used the machine roughly one day per week for about three years (approximately 156 days), yielding $1,560 in unjust enrichment.
No. Restitution in this context is not limited by the plaintiff's loss or by market rental value. The key inquiry is the benefit to the defendant that would be unjust to retain—here, the labor cost savings from unauthorized use. The absence of a rental market or difficulty quantifying the plaintiff's loss does not bar restitution.
Restitution may still be available for unauthorized use, but courts are more likely to employ a value-to-the-defendant measure—and to strip all gains—when the conduct is willful. In cases of innocent or mistaken use, some courts may limit recovery to a reasonable rental value or otherwise calibrate relief to avoid disproportionate forfeiture.
Generally no. The plaintiff must elect a remedy to avoid double recovery. In Olwell, the plaintiff chose restitutionary recovery measured by the defendant's gains, rather than tort damages measured by the plaintiff's loss or the chattel's value.
Remedies are not one-size-fits-all. Tort damages and restitution address different remedial goals: compensation versus disgorgement. Olwell shows courts will tailor relief to prevent unjust enrichment and deter calculated wrongdoing, even when compensatory damages might be minimal.
Olwell v. Nye & Nissen Co. crystallizes the distinction between compensatory tort damages and restitutionary disgorgement. By allowing the plaintiff to waive tort and recover the value of the defendant's gains from unauthorized use, the court prevented a calculated wrongdoer from profiting simply because the owner's personal loss was not extensive or easily quantifiable.
For students and practitioners, the case underscores how the choice of remedy can reshape both the theory of the case and the measure of recovery. It remains a leading authority for the value-to-the-defendant measure in unjust enrichment, reinforcing the principle that courts will not permit willful trespassers to retain benefits derived from their wrongful acts.
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