concurring and dissenting:
While I agree with the majority’s disposition of the declaratory judgment action in the instant case, I disagree with its affirmance of the lower court’s order at No. 978. The difficulty with the majority’s decision, and that of the court below, is its failure to distinguish the towing company’s right to collect the costs of towing and storing appellee’s car from its “right” to hold the automobile pursuant to a lien. As a consequence, the majority opinion reaches the conclusion that the towing company is not entitled to keep the money paid for towing and storage because it asked for it in the wrong way; that is the towing company was impolite enough to suggest that it would not release appellee’s car unless he paid the towing charges. Of course, appellee’s very argument for refund implies that he would not have paid the towing charges except under such a threat. In my *551opinion, the towing company’s threat is irrelevant since prior to the instant litigation the parties had adjusted the dispute to reach precisely the result a further and needless lawsuit would produce.
The majority sets the wrong course when it rests its decision on the no lien issue. The question is whether appellee’s trespass caused damages to the owner of the parking lot for which the towing company was a proper party to collect. Forgetting for a moment the question whether the towing company’s “threat” to retain the automobile if the charges were not paid affects the rights and remedies of the parties, the towing company was clearly still entitled to collect the towing charges from appellee. Restatement of Torts § 923, provides that a tortfeasor may set-off against a claim by an injured party any sum paid to a third person which satisfied a debt which the tortfeasor’s conduct caused the injured party to incur. Comment b to Section 923 provides in pertinent part: “Where the defendant’s tort causes the plaintiff to be liable to a third person, the tortfeasor can terminate all but consequential damages by payment of the claim.” In the instant case appellee’s trespass caused the owner of the parking lot to incur a debt to the towing company. Even if we assume arguendo that appellee had the legitimate alternative of paying the amount of the debt either to the towing company or the landowner,1 he did not have the alternative of not paying the debt at all. Hence, it should be clear that, except for the towing company’s threat to detain the car if the charges were not paid, appellee would not be entitled to recover the $25.30, because he would be unjustly enriched thereby at the expense of either the towing company or the parking lot owner. Restatement, Restitution § 1, Comment b.
The question then becomes whether the towing company’s threat to detain the car somehow altered its right to retain the $25.30 in towing and storage charges. This is the issue *552which leads the majority on unnecessary search for the elusive lien.2 However, if we assume for the sake of argument that the towing company’s detention of the car would have been tortious, it does not follow that appellee’s remedy is recovery of the $25.30 charged for towing and storage, plus interest. Section 931 of the Restatement of Torts entitled, “Detention of Land or Chattels” provides the measure of damages for tortious detention of a chattel:
“Where a person is entitled to a judgment for the detention of, or for preventing the use of, land or chattels, the damages include an amount for
(a) the value of the use during the period of detention or prevention, or the value of the use of or the amount paid for a substitute, and
(b) amount for harm to the subject matter or other harm or which the detention is the legal cause.”
As the Restatement makes clear, appellee’s appropriate measure of damages is the value of loss of use of the vehicle during the period of wrongful detention; in this case arguably from the time when appellee’s brother demanded return of the vehicle to the time he paid the towing and storage charges and received the vehicle. Obviously, given the brevity of the detention in this case, such damages would be trivial. Appellee’s remaining measure of damages, since the automobile itself was not damaged, is “other harm of which the detention is the legal cause.” Presumably, appellee would argue that it was the towing company’s threat to detain his car which caused him to pay the $25.30. Whatever practical significance this argument may have, the towing company’s threat to detain the automobile was not the legal cause of appellee’s parting with the $25.30. As discussed above, appellee’s tortious conduct caused him to become liable for the towing and storage charges. Because *553appellee was legally obliged to pay $25.30 prior to the threat to detain the car, he may not be heard to say that the threat forced him to pay what he otherwise would not have paid. At least, the threat cannot be viewed as the legal cause of the payment. Nor did the threat constitute actionable duress, for it did not force appellee to forego a choice which he was legally entitled to make; i. e., not pay the charges. See Restatement, Torts § 871, Comment f.
In short, with respect to Natalie’s Towing Co., the lower court’s order, which the majority affirms, disrupted the proper adjustment of liabilities which the parties, albeit extralegally, achieved; and, this conclusion can be reached without the necessity of finding a lien for the towing company. By restoring the $25.30 plus interest the court wrongfully permits appellee to profit, by free parking, at the expense of both the towing company and the owner of the parking lot. See Restatement, Restitution § 3. Hence, I would reverse the order of the lower court with respect to No. 978.
. It seems clear that the law would have little difficulty finding either an equitable assignment of the claim for the debt to the towing company, or that the towing company was an equitable subrogee. See D. Dobbs, Remedies 250-52 (1973).
. I do not mean to imply that legal justification for the towing company’s detention of the car is impossible to find, for I have not fully researched the question. However, it is at least more difficult to determine than the towing company’s right under my analysis. Certainly, many obstacles would be removed if the legislature amended the statute in question to expressly provide for a lien.