In the preceding discussion of the various torts in which there is an election to sue for restitution, the measure of recovery has from time to time been stated. It is fundamental that the plaintiff's recovery must be limited to the value of the benefit unjustly enjoyed by the defendant at the plaintiff's expense.5 Consequently, if there are circumstances which make it equitable for a wrongdoer to retain part of the proceeds of his wrong, only the balance may be recovered from him. Such was thought to be the case in the Wisconsin case of Western Assurance Co. v. Towle.6 The defendants, by fraudulent representations as to the extent of a loss, which fraudulent representations, under the terms of the policy, worked a forfeiture of the right to recover anything upon the policy, had obtained payment as for a total loss. The plaintiff brought this action to recover the full amount paid, but it was held that it was entitled to recover only the amount paid over and above the actual loss. Said the court:
1 Also : Gilmore v. Wilbur, 1831, 12 Pick. (Mass.) 120; 22 Am. Dee. 410; White v. Brooks, 1861, 43 N. H. 402.
2 Tankersley v. Childers, 1853, 23 Ala. 781.
3Bristow p. Eastman, 1794, 1 Esp. 172; Elwell v. Martin, 1859, 32 Vt. 217.
4 Elwell v. Martin, 1859, 32 Vt. 217, 222.
5Culberson v. Alabama Const. Co., 1907, 127 Ga. 599; 56 S. E. 657, 767-9; 9 L. R. A. (N. S.) 411; Western Assurance Co. v. Towle, 1886, 65 Wis. 247, 258-61; 26 N. W. 104; Huganir v. Cotter, 1899, 102 Wis. 323 ; 78 N. W. 423 ; 72 Am. St. Rep. 884.
61886, 65 Wis. 247, 257; 26 N. W. 104.
"The action for money had and received is in some sense an equitable action, and the insurance company having voluntarily paid the money on an alleged loss claimed by the defendants, they can only recover back so much as in equity and good conscience they ought not to have paid. . . . False swearing and false valuation in proof of loss might have been a good defense to a recovery upon the policy had the plaintiff refused to pay the loss; but it cannot be made the basis of a right to recover back money already paid upon the policy. The plaintiff's right to recover depends upon proof establishing the fact that the company had paid more money than covered the loss sustained by the defendants, and that such payment was procured by the false and fraudulent acts of the defendants."
The precise amount recoverable may depend in some cases upon the form of assumpsit used. Thus, if A wrongfully seizes B's goods and is sued in assumpsit for goods sold and delivered (as, in many jurisdictions, he may be), the measure of recovery is the value of the goods at the time of the conversion. But if A, after seizing the goods, sells them, and is sued, not for goods sold and delivered, but for money had and received, the measure of recovery is the sum realized from the sale, whether such sum exceeds or falls short of the value of the goods at the time of the original conversion. This, presumably, either upon the theory that the owner may elect to regard the sale of his goods, rather than the original taking, as the conversion, and the amount of money received by the converter as conclusive evidence of the value of that which has been taken from him, or upon the theory that the converter holds the proceeds of the sale as a sort of constructive trustee for the owner. So, in cases of services rendered under compulsion, the wrongdoer may be held, in assumpsit for work and labor, for the value of the services; but if he has sold the services, i.e. compelled the plaintiff to work for a third party, and is sued for money had and received, the amount received by the wrongdoer is the amount recoverable from him.1
Since the obligation is to make restitution, not to account, profits, as such, are not recoverable. Thus, if A owns a vehicle for the carriage of passengers which he lets for fifteen dollars per day, and B wrongfully takes and uses the vehicle for five days, thereby making an actual profit of one hundred dollars, A should be allowed to recover, not one hundred dollars, the profit realized by the wrongdoer, but seventy-five dollars, the value of that which was taken from the party injured. However, if B, instead of using the vehicle himself, lets it to C for five days at twenty dollars per day, and receives from C the sum of one hundred dollars, A would probably be allowed, in a count for money had and received, to recover the amount received by B from C.