Miller, J.
— I. The first error assigned is the overruling of the motion to set aside the attachment against defendant McKinney.
l. Attachment: tractu ana°ex" delicto. The statute provides (Rev., § 3177) that, “ when an action is founded on tort, the original petition must be presented to some judge of the supreme, district or circuit court, who must make an allowance thereon of the amount in value of the property of the defendant that may be attached.” The appellants’ position is, that the action in this case is “founded on tort” for the wrongful conversion of plaintiff’s wheat, and hence an allowance, as required by the statute, was necessary to be made by some judge, before an attachment could lawfully issue; that no such allowance having been made the attachment should have been set aside on the motion.
We are clear that this action is not founded on tort. It is most manifestly an action to recover for the breach of an alleged contract. The gravamen of the action is the failure of the defendants to deliver to the plaintiff on demand the wheat stored by him with the defendants, according to the contract alleged. The allegation of the petition that defendants had shipped and sold the grain, and thereby converted it, is an unnecessary averment. It was but evidence and should not have been stated (Rev., § 2945),' and might have been stricken out on motion. Rev., § 2946. It was proper evidence to show that de*163fendants had disabled themselves from delivering the wheat according to the contract stated.
The action is founded on the contract alleged. The facts are stated, and the right to recover is based on the alleged breach of the contract. Even under the old common-law forms of pleading a party could waive the tort and sue in assumpsit. Under Our statute all forms of action and pleadings are abolished, and the plaintiff recovers, if at all, on the facts stated and proved. Rev., §§ 2608, 2872, 2873.
And where,' as in this ease, the facts alleged show that the plaintiff’s right of action arises out of a breach of contract, no allowance is necessary previous to suing out an attachment. In support of this view, see Lord v. Gedd, 6 Iowa, 57" court="Iowa" date_filed="1858-04-15" href="https://app.midpage.ai/document/lord-v-gaddis-7091385?utm_source=webapp" opinion_id="7091385">6 Iowa, 57; Swam et al. v. Smith et al., 26 id. 87.
3. Bailment: warehouse-men: destrucertybyflre. II. The next error assigned is, that the judgment of the court is not sustained by sufficient evidence. There is a conflict of evidence upon whether the plain- . . x titt stored ms gram with the defendants, under ° special contract averred m the petition* A s 1 that the grain was stored with defendants; that it was shipped by them, and sold and never returned or paid for, there is no question whatever. The defendants offered evidence tending to show that the grain was stored generally without any special agreement; that, according to the custom among warehousemen and grain dealers in De Witt, defendants had the right to ship the grain of plaintiff, replacing it with other grain of like quality; and that, when their warehouse and its contents were destroyed by fire, they had therein grain of the same quality and quantity as that of plaintiff. On the other hand, the plaintiff offered evidence tending to show that he did make the special contract alleged; that his grain was stored in separate bins; that he knew nothing of the custom referred to; that he demanded its delivery to him before the fire, and it was not then in the warehouse, nor was there therein sufficient other wheat of like quality as his, and no *164delivery was made. Where the evidence is thus conflicting we have uniformly refused to disturb the finding of the court or jury. In this case, however, we are of opinion that the preponderance of the evidence is on the side of the finding of the court. See Brockman v. Berryhill, 16 Iowa, 183" court="Iowa" date_filed="1864-04-22" href="https://app.midpage.ai/document/brockman-v-berryhill-7092958?utm_source=webapp" opinion_id="7092958">16 Iowa, 183, and cases cited.
III. The last assignment is, that the judgment is contrary to law.
This assignment is predicated on the appellants’ construction of the evidence. It is not claimed that, if the finding of the court is supported by sufficient evidence, the judgment is, notwithstanding, contrary to law. If the plaintiff stored his wheat with the defendants under the special contract stated in his petition, and they shipped and sold it, and failed to deliver it on demand according to the contract, and that this was before the warehouse was burned, there was a palpable breach of the contract on the part of defendants, for which they are liable to respond in damages.
The court below found such to be the facts. The judgment therefore is not contrary to law.
Affirmed.