## Facts

- E. L. Olwell sold his one-half interest in an egg business to Nye & Nissen Co., while expressly retaining ownership of an “Eggsact” egg-washing machine.
- The sale agreement required Nye & Nissen to make the machine available for delivery to Olwell by a specified date.
- The machine was stored in space adjacent to Nye & Nissen’s premises; without Olwell’s knowledge or consent, Nye & Nissen removed it from storage and used it in its plant.
- Nye & Nissen used the machine about one day per week for roughly three years; for the period not time-barred, the relevant use spanned 156 weeks.
- The trial court found the machine saved Nye & Nissen approximately $10 per day of use in labor costs.
- In 1945, Olwell discovered the use while on the premises for other business and attempted to sell the machine to Nye & Nissen; negotiations failed.
- Olwell did not sue for conversion; he elected restitution for the reasonable value of Nye & Nissen’s unauthorized use.

## Issues

1. Whether an owner may waive a tort claim for wrongful use of a chattel and instead recover in quasi-contract for unjust enrichment based on the wrongdoer’s benefit.
2. Whether restitution may be measured by the defendant’s cost savings (profit from use) rather than the chattel’s rental value or the plaintiff’s actual loss, including where the plaintiff had no present use for the chattel.
3. Whether the judgment may exceed the amount effectively requested in the complaint’s prayer for relief.

## Decision

- The court held the owner could waive the tort and sue in assumpsit (quasi-contract) to recover restitution for unjust enrichment.
- The court held labor-cost savings from the machine’s unauthorized use constituted a cognizable benefit, and interference with the owner’s right to exclusive use was a compensable harm even if the machine was in storage.
- The court ruled that where the defendant’s conduct is consciously tortious, restitution may be measured by the profit derived from the wrongful use.
- The court modified the award because a judgment may not exceed the amount demanded in the prayer for relief.
- Disposition: judgment reduced from $1,560 to $900 and, as modified, affirmed.

## Legal Principles

- A plaintiff may elect to waive tort remedies and seek restitution when the defendant has benefited from a wrongful act; the action rests on a duty imposed by law to repay unjust enrichment.
- For wrongful use of another’s chattel, the “benefit” for restitution can include cost savings directly attributable to the use.
- The right of exclusive use is a core incident of property; unauthorized use can constitute compensable harm even absent the owner’s current use or measurable out-of-pocket loss.
- In cases of consciously tortious conduct, restitution may be based on disgorgement of the defendant’s profits from the wrongful use without treating the award as punitive damages.
- A court may not award more than the amount demanded in the complaint’s prayer for judgment.

## Conclusion

The Washington Supreme Court recognized restitution as an available election for wrongful chattel use, permitting recovery measured by the defendant’s gains from knowingly unauthorized use, but limited the award to the maximum amount sought in the prayer for relief.


Olwell v. Nye & Nissen Co., 26 Wn.2d 282, 173 P.2d 652 (Wash. 1946)