Nesbitt v. McGehee
Supreme Court of Alabama
Appeal from the Circuit Court of Cherokee. Tried before the Hon. John E. Mooke. CoyENANT by Wilson Nesbitt against Nicholas McGehee, to recover damages for the defendant's breach of this contract:— “ Articles of agreement, made this 28th day of January, 1841, between Wilson Nesbitt, of the one part, and Nicholas McGuhee, of the other part, witnesseth, That the said McGehee covenants and agrees to deliver to the said Nesbitt, at the water’s edge, at his steam-mill at Cedar…
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Appeal from the Circuit Court of Cherokee. Tried before the Hon. John E. Mooke. CoyENANT by Wilson Nesbitt against Nicholas McGehee, to recover damages for the defendant's breach of this contract:— “ Articles of agreement, made this 28th day of January, 1841, between Wilson Nesbitt, of the one part, and Nicholas McGuhee, of the other part, witnesseth, That the said McGehee covenants and agrees to deliver to the said Nesbitt, at the water’s edge, at his steam-mill at Cedar Bluff, all the stocks for string timber for the Memphis Branch Railroad, agreeably to said Nesbitt’s contract, made…
1Opinion of the CourtRice, J.
—Where a contract under seal is materially varied, by a subsequent valid contract under seal, the plaintiff cannot recover under a declaration which sets forth the former contract only, and a breach of it. His safe course is, to set forth both contracts, and an appropriate breach. McVay v. Wheeler, 6 Porter’s R. 201; Barelli v. O’Conner, 6 Ala. 617.
The declaration in this case shows, that on the 28th day of January, 1847, the parties sealed and executed a certain agreement in writing, the terms of which are stated ; and that on the 18th day of February, 1847, they sealed and executed an…
2Cases cited8 opinions
- Drake v. GoreeSupreme Court of Alabama · 1853
- Wallis v. LongSupreme Court of Alabama · 1849
- Leavitt v. SmithSupreme Court of Alabama · 1844
- Allen v. GreeneSupreme Court of Alabama · 1851
- Spivey v. MorrisSupreme Court of Alabama · 1850
3 more not listed; retrieve them via the Exa API.
3Cited by18 opinions
- Lowery v. MaySupreme Court of Alabama · 1925
- Florence Cotton & Iron Co. v. FieldSupreme Court of Alabama · 1894
- Moore v. WilliamsonSupreme Court of Alabama · 1925
- Elliott v. HowisonSupreme Court of Alabama · 1906
- Westmoreland v. PorterSupreme Court of Alabama · 1883
13 more not listed; retrieve them via the Exa API.