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Keywords

contracttortplaintiffdefendantdamagesunjust enrichmentquasi-contractrestitution
contracttortplaintiffdefendantstatutetrialstatute of limitationsquasi-contractrespondentappellantrestitution

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Olwell v. Nye & Nissen Co., 26 Wash.2d 282, 173 P.2d 652, 169 A.L.R. 139

Facts

On May 6, 1940, E. L. Olwell sold his half interest in Puget Sound Egg Packers to Nye & Nissen Company but retained ownership of an egg-washing machine. The defendant was to deliver the machine to Olwell by June 15, 1940, but instead, they used it without his consent starting May 31, 1941. Olwell discovered the unauthorized use in early 1945 and subsequently sought damages for the machine's use, leading to this legal action.

By the terms of the agreement, the plaintiff was to retain full ownership in an ‘Eggsact’ egg-washing machine, formerly used by Puget Sound Egg Packers. Due to the scarcity of labor immediately after the outbreak of the war, defendant's treasurer, without the knowledge or consent of the plaintiff, ordered the egg washer taken out of storage.

Issue

The main legal issue was whether Olwell could recover damages for the unauthorized use of his egg-washing machine by Nye & Nissen Company under the theory of unjust enrichment.

The theory of the respondent was that the tort of conversion could be ‘waived’ and suit brought in quasi-contract, upon a contract implied in law, to recover, as restitution, the profits which inured to appellant as a result of its wrongful use of the machine.

Rule

The court applied the principle that a plaintiff may elect to waive a tort and bring an action in quasi-contract for restitution when the defendant has benefited from wrongful conduct.

It is uniformly held that in cases where the defendant tort feasor has benefited by his wrong, the plaintiff may elect to ‘waive the tort’ and bring an action in assumpsit for restitution.

Analysis

The court found that the defendant's use of the egg-washing machine resulted in a financial benefit to them, as it saved them labor costs. Despite the defendant's argument that Olwell suffered no loss since the machine was in storage, the court emphasized that the right to exclusive use of property is a compensable loss. Thus, the unjust enrichment theory was applicable, allowing Olwell to recover damages.

However plausible, the appellant cannot be heard to say that his wrongful invasion of the respondent's property right to exclusive use is not a loss compensable in law.

Conclusion

The court modified the judgment to reduce the amount awarded to Olwell but affirmed the decision that he was entitled to recover for the unauthorized use of his machine.

We therefore direct the trial court to reduce the judgment, based upon the prayer of the complaint, to $25 per month for thirty-six months, or $900.

Who won?

E. L. Olwell prevailed in the case because the court recognized his right to compensation for the unauthorized use of his property, despite the defendant's claims to the contrary.

The court entered judgment for plaintiff in the amount of $10 per week for the period of 156 weeks covered by the statute of limitations, or $1,560, and gave the plaintiff his costs.

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