Accord and satisfaction was recognized as a bar to an action in tort at a period when the simple executory contract was unenforceable in the king's courts.1 At this time, therefore, an executory accord could have no legal effect. Even if the creditor had been willing to take the executory promise in satis-faction of his original claim, he would have acquired no right at law by reason of such executory contract, and accordingly there would have been no consideration for his promise to discharge his claim. Furthermore, in most cases, the parties to an accord intend that the original cause of action shall be discharged by performance of the accord unless they agree expressly that the promise contained in the accord shall be taken in full satisfaction of the original liability.

At the early common law, the second reason had practically no weight and the first reason was controlling. It was held by the English courts from an early period that an accord executory without a" satisfaction was no bar,2 and this rule was applied in a variety of cases in the American courts.3

4 Steeds v. Steeds, 22 Q. B. I). 537.

5 Blake's Case, 6 Coke, 43b.

6 Boffinger v. Tuyes, 120 U. S. 198, 30 L. ed. 049; Alden v. Thurber. 149 Mass. 271, 21 N. E. 312; Mitchell v. Hawley, 4 Denio (N. Y.) 414, 47 Am. Dec. 260; McCreery v. Day, 119 N. Y. 1, 16 Am. St. Rep. 793, 6 L. R. A. 503, 23 N. E. 198. 1 See Sec. 23 et seq.

2 Richard v. Bartlet, 1 Leon. 19; Cumber v. Wane, 1 Strange 426; Pey-toe's Case, 9 Coke 77 b; and see also the cases cited in Rolle's Digest under the title "Accord."

3 United States. Memphis v. Brown, 87 U. S. (20 Wall.) 289, 22 L. ed. 264,

The satisfaction which was necessary was a complete performance of the accord. A partial performance was not a satisfaction,4 even if the creditor could have received satisfaction if he had wished.5 The fact that the accord was performed in part and that performance of the remainder was tendered to the creditor,6 or the fact that the creditor refused performance,7 did not give any legal effect to the executory accord.

After the simple executory contract became recognized at the king's courts, the first reason for the rule that satisfaction was necessary to operate as a discharge of the original liability disappeared. After a simple executory contract became enforceable, a creditor who wished to accept such a contract and in consideration thereof to discharge his original claim, acquired an enforceable right by reason of such contract. The second reason, however, persisted. The result at modern law is that if the parties so agree, the promise of the debtor may be accepted by the creditor in satisfaction of the original liability.8 In such a case, the fact that the promise of the debtor is broken subsequently does not ordinarily prevent the effect of accord and satisfaction as a discharge of the original liability.9

Alabama. Brown v. Lowndes County, - Ala. - , 78 So. 816.

Illinois. Jacobs v. Marks, 183 111. 533. 56 N. E. 154.

Michigan. Henderson v. McRae, 148 Mich. 324, 111 N. W. 1057.

New York. Russell v. Lytle, 6 Wend. (N. Y.) 390, 22 Am. Dec. 537; Bandman v. Finn, 185 N. Y. 508, 12 L. R. A. (N.S.) 1134, 78 N. E. 175.

North Carolina. King v. Atlantic C. L. R. Co., 157 N. Car. 44, 48 L. R. A. (N.S.) 450, 72 S. E. 801.

Ohio. Ellis v. Bitzer, 2 Ohio 89, 15 Am. Dec. 534; Frost v. Johnson, 8 Ohio 393.

4 England. Peytoe's Case, 9 Coke, 77b.

United States. Memphis v. Brown, 87 U. S. (20 Wall.) 289, 22 L. ed. 264.

Alabama. Stephenson v. Allison, 165 Ala. 238, 138 Am. St. Rep. 26, 51 So. 622.

Ohio. Frost v. Johnson, 8 Ohio 393.

Pennsylvania. Schwartzfager v. Pittsburgh H. B. & C. Ry. Co., 238 Pa. St. 158, 85 Atl. 1115.

5 King v. Atlantic C. L. R. Co., 167

N. Car. 44, 48 L. R. A. (N.S.) 450, 72 S. E. 801.

6 England. Peytoe's Case, 9 Coke, 77b.

Massachusetts. Prest v. Cole, 183 Mass. 283, 67 N. E. 246.

New York. Day v Roth, 18 N. Y. 448.

Ohio. Frost v. Johnson, 8 Ohio 293.

Oklahoma. Houston v. Wagner, 28 Okla. 367, 114 Pac. 1106.

7Eichholtz v. Taylor, 88 Ind. 38.

8 England. Crowther v. Farrer, 16 Q. B. 677.

United States. Very v. Levy, 54 U. S. (13 How.} 345, 14 L. ed. 173.

Alabama. Brown v. Lowndes County, - Ala. - , 78 So. 815.

Massachusetts. Tuttle v. Metz Co., 229 Mass. 272, 118 N. E. 291.

Michigan. Henderson v. McRae. 148 Mich. 324, 111 N. W. 1057.

New York. Bandman v. Finn, 185 N. Y. 508, 12 L. R. A. (N.S.) 1134, 78 N. E. 175; Reilly v. Barrett, 220 N. Y. 170, 115 N. E. 453.

Oklahoma. Gunn v. Fryberger, - Okla. - , 176 Pac. 248.