Olwell v. Nye & Nissen Co.

173 P.2d 652



Where a defendant tortfeasor benefits from the tort committed, the aggrieved plaintiff may elect to "waive the tort" and bring an action against the tortfeasor for restitution.


Plaintiff owned a machine, and left the machine in a space adjacent to the defendant's leased premises. The defendant began to use the machine without the plaintiff's permission and that usage was discovered three years later. The plaintiff offered to sell the machine to defendant,  but the parties could not agree on a price. The plaintiff commenced an action to recover the reasonable value of the defendant's use of the machine, praying for a specified monthly amount from the commencement of the unauthorized use until the time of trial. The trial court entered judgment for the plaintiff in an amount in excess of that prayed for by the plaintiff. The defendant appealed and argued that the judgment was excessive and that the complainant had an adequate remedy in an action for replevin or claim and delivery, and any damages should be related to the use or rental value of the machine.


Could the plaintiff could recover the profit derived by the defendant from the use of the plaintiff's machine?




On appeal, the Court upheld the ruling in favor of the plaintiff. The Court held that the plaintiff could recover the profit derived by the defendant from the use of the machine. The court further determined that the judgment was excessive because it was more than prayed for by the complainant, and lowered the amount of the plaintiff's award to the amount prayed for in the complaint.

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