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.
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.