After a valid accord and satisfaction the original liability is discharged.1 This is sometimes spoken of as "merger," 2 but this can net mean merger in the technical sense,3 since accord and satisfaction operates as a discharge of the original liability only if such is the intention of the parties, while merger operates as a discharge without regard to their intention.

Pennsylvania. Laughead v. Frick Coke Co., 209 Pa. St. 368, 103 Am. St. Rep. 1014, 58 Atl. 685.

Vermont. Babcock v. Hawkins, 23 Vt. 661.

West Virginia. Bennett v. Federal Coal & Coke Co., 70 W. Va. 456, 40 L. R. A. (N.S.) 588, 74 S. E. 418.

Wisconsin. Palmer v. Yager. 20 Wis. 01.

9Tuttle v. Metz Co., 229 Mass. 272, 118 N. E. 201.

10 Frankfurt-Barnett Co. v. William Prym Co., 237 Fed. 21, L. R. A. 1918A. 602: Ledwidge v. Arkansas Nat. Bank,

- Ark. - , 203 S. W. 808; Luther v. Ullritch, - Ia. - , 166 N. W. 85.

11 Ledwidge v. Arkansas Nat. Bank,

- Ark. - , 205 S. W. 808.

12Bradly v. Gregory, 2 Camp. 383.

13 Laughead v. Frick Coke Co., 209 Pa. St. 368, 103 Am. St. Rep. 1014, 58 Atl. 685.

14Bradly v. Gregory, 2 Camp. 383.

1 Alabama. Smith v. Elrod, 122 Ala. •360, 24 So. 904; Brown v. Lowndes County, - Ala. - , 78 So. 815.

Illinois. Janci v. Cerny, 287 111. 359, 122 N. E. 507.

Michigan. Detroit v. Detroit Ry. Co.. 134 Mich. 11, 104 Am. St. Rep. 600. 95 N. W. 992.

New York. Reilly v. Barrett. 220 N. Y. 170, 115 N. E. 453.

New Jersey. Savage v. Edgar. 86 N. J. Eq. 205, 3 A. L. R. 1021. 98 Atl. 407.

North Dakota. Swnn v. Grout Northern Railway Co., - N. D. - , L. R. A. 1918F, 1063, 168 N. W. 667.

After accord and satisfaction, no action can be brought upon the original cause of action, and if the promise of the debtor is taken as satisfaction of his original liability, his failure to perform his promise does not operate as a discharge of the accord and satisfaction,4 but the right of action of the creditor is solely upon the promise which he has taken as satisfaction of his original cause of action.5 In this respect the effect of total failure of consideration differs from its effect in ordinary contracts.6

Whether an accord is to be recognized as a valid contract like any other simple executory contract, for the purpose of bringing an action thereon, when it has no effect as a bar to an action upon the former liability,7 is a question upon which there is comparatively little authority, but which has caused some trouble. It has been said that no action can be brought upon an accord, since it has no legal effect while it is executory, and after it is executed the promisor is discharged from all legal liability by reason of such performance.8 Other cases have seemed to hold that an action might lie.9

If we assume that the accord has no effect as a bar to the original liability, and that the new promise either can not be taken in satisfaction of the original liability, or that the parties do not intend that it shall be taken in satisfaction of the original liability, it is difficult to see the presence both of consideration and of performance in such cases. The consideration is either the promise to forbear the legal liability in question, or the actual forbearance thereof. If the accord has no legal effect while it is executory, we have a case in which there is a promise on the one side which is of no legal effect as an alleged consideration for a promise on the other side. A promise which has no legal effect is ordinarily held not to be a sufficient consideration.10 The only theory upon which it can be held to be a consideration is that the adversary party accepts the making of the promise in itself apart from any legal liability attaching thereto as a consideration for his promise. This is almost invariably exactly the opposite of what the party to such a contract really intended. As long as the original liability persists, there can be no consideration for the promise of the party who is subject to such liability to do something in place thereof; and if there is no consideration for a promise it can be no consideration for the inoperative promise of the adversary party to give up such legal liability. The question is now solved in most jurisdictions by giving effect to the intention of the parties whenever they intend to accept a new promise as satisfaction of the original liability.11

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

Pennsylvania. Laughead v. Frick Coke Co., 209 Pa. St. 368, 103 Am. St. Rep. 1014, 58 Atl. 685.

If accord and satisfaction are not made until after an action is brought, such defense must be made in such action. Equity will not enjoin the further prosecution of such action. Savage v. Edgar, 86 N. J. Eq. 205, 3 A. L. R. 1021, 08 Atl. 407.

2 Swan v. Great Northern Railway Co., - N. D. - , L. R. A. 1918F, 1063, 168 N. W. 657.

3 See ch. LXXVI.

4 See Sec. 2515.

5 Contra, on this question, Palmer v. Yager, 20 Wis. 91.

6 See ch. LXXXIV.

7 See Sec. 2515.

8 Lynn v. Bruce, 2 H. Bl. 317; Reeves v. Hearne, 1 M. & W. 323.

See also, Allen v. Harris, 1 Ld. Raym. 122.

9Crowther v. Farrer, 15 Q. B. 677; Nash v. Armstrong, 10 C. B. (N.S.) 259.