This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
In most systems of law which have advanced so far that they recognize different degrees in the formality of valid transactions, it is generally assumed that the more formal transaction will operate so as to extinguish all the rights of the parties to it arising out of a prior but less formal transaction which covers the same subject-matter. At Roman law the word which was used to indicate this result involved the simile of eating up.1 At English law the same idea was expressed by words which involved the simile of drowning. The informal transaction or the contract right of lower rank was said to merge in the more formal transaction or the contract right of higher rank. By derivation the word "merge" implied a sinking in water so as to drown; and this idea is not infrequently expressed at an earlier period in English words as well as in Latin derivatives, and it is not infrequently said that the original right is drowned in the more formal right or in the contract right of higher rank.2 Subject to some of the qualifications set forth later,3 it was well settled at common law that a contract between two parties was merged by a subsequent contract between the same parties which dealt with the same subject-matter, if the second contract was of a higher rank than the first, and if the creditor was not deprived of any pre-existing remedy by such merger.4
1 The rule that a right of action was extinguished by bringing an action thereon and carrying it to a certain degree of legal proceedings, was expressed by saying "actio consumitur"; that is, that the right of action was eaten up. Salkowski, Roman Private Law, Sec. 26.
2 "The original contract is drowned in the judgment." Biddleson v. Whitel, 1 W. Bl. 506, 3 Burr. 1545.
3See Sec. 2555 et seq.
4 England. Biddleson v. Whitel. 1 W. Bl. 506, 3 Burr. 1545; Price v. Moulton, 10 C. B. 661.
Arkansas. Hemingway v. Grayling Lumber Co., 125 Ark. 400, 188 S. W. 1186.
Indiana. Rhoades v. Jones. 92 Ind. 328.
Kansas. Remington Paper Co. v. Hudson, 64 Kan. 43, 67 Pac. 636.
Kentucky. Commonwealth v. Hark-ness' Administrator, 181 Ky. 709, 205 S. W. 787.
Maryland. Packham v. German Ins. Co., 91 Md. 515, 80 Am. St. Rep. 461, 50 L. R. A. 828, 46 Atl. 1066.
Minnesota. Griswold v. Eastman. 51 Minn. 189, 53 N. W. 542; Gould v. Svendsgaard. 141 Minn. 437. 170 N. W. 595.
Missouri. Barger v. Healy, 276 Mo. 145, 207 R. W. 499.
New Hampshire. Labonte v. Lacasse 78 N. H. (1 Hening) 489, 102 Atl. 540.
New Jersey. Baker v. Baker, 28 N J. L. 13, 75 Am. Dec. 243; Traflet v. Empire Ins. Co., 64 N. J. L. 387, 46 Atl 204.
New York. Howes v. Barker, 3 Johns (N. Y.) 506, 3 Am. Dec. 526.
North Carolina. Costner v. Fisher, 104 N. Car. 392, 10 S. E. 526; Case Mfg. Co. v. Moore, 144 N. Car. 527, 119 Am. St. Rep. 983, 10 L. R. A. (N.R.) 734, 57 R. E. 213.
Ohio. McNaughten v. Partridge, 11 Ohio 223, 38 Am. Dec. 731; James v. Allen Co., 44 O. R. 226, 58 Am. Rep. 821, 6 N. E. 246.
Pennsylvania. Titus v. Poland Coal Co., 263 Pa. St. 24, 106 Atl. 90.
Rhode Island. Garabedian v. Avedi-sian, - R. I. - , 105 Atl. 516.
Tennessee. Nichols v. Thompson, 9 Tenn. (1 Yerg.) 151.
Virginia. Shenandoah Valley Ry. v. Dunlop, 86 Va. 346, 10 S. E. 239.
Washington. Carmean v. North American Transportation and Trading Co., 45 Wash. 446, 122 Am. St. Rep. 930, 8 L. R. A. (N.R.) 595, 88 Pac. 834; Denton v. Maple, 92 Wash. 290, 158 Pac. 1001; Petri v. Manny, 99 Wash. 601, 170 Pac. 127.
West Virginia. Williamson v. Cline, 40 W. Va. 194, 20 S. E. 917; French v. McMillion, 79 W. Va. 639, L. R. A. 1917D, 228, 91 S. E. 538.
Wisconsin. Borchert v. Skidmore Land Co., 168 Wis. 523 [sub nomine, Borchert v. Coons, 171 N. W. 70].
For merger of rights and defenses, including questions of res ad judicata, see also, National Foundry & Pipe
Merger, as distinguished from discharge by voluntary agreement and the like,5 did not depend in the least upon the intention of the parties that such result should be accomplished. In some cases the intention of the parties was ignored, and in others it was, no doubt, defied.
As has been said before,6 the so-called contracts at common law were divided in the first instance into the formal and the simple, and the formal contracts were in turn divided into the contracts of record and the contracts under seal. In applying the general principle, we find, as we may expect, that the simple contract is always merged in a subsequent formal contract between the same parties, covering the same subject-matter.7 "We would naturally expect to find the sealed contract merge in the contract of record, but the peculiarities of the sealed contract, cause Borne difficulties in reaching this result.8