31 Iowa 160 | Iowa | 1870
— I. The first error assigned is the overruling of the motion to set aside the attachment against defendant McKinney.
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
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; Swam et al. v. Smith et al., 26 id. 87.
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.