of the same persons who had constituted the association and by the allegations of the complaint, it appears therefrom, succeeded to all the rights of the association to the water supply, water mains, and right to furnish water to said colony, and subsequently transferred them to the defendant Oroville Water Company. We think a fair consideration of the complaint shows that the plaintiff alleged that he purchased his land and water from the Thermalito Colony Company, the association. But if the complaint were indefinite or uncertain in this respect, it was subject to a special and not a general demurrer. Amestoy v. Electric R. P. Co., 95 Cal. 311, 30 Pac. 550; Lawrence Nat. Bank v. Kowalsky, 105 Cal. 41, 38 Pac. 517; Daggett v. Gray, 110 Cal. 169, 42 Pac. 568.

It is further insisted that the contract with reference to the water supply for the benefit of plaintiff's land made by the association was not a covenant running with the land, but, at most, a personal covenant, which was not binding upon the water company defendant, as assignee of the Thermalito Colony Association. We do not discuss the point as to whether the covenant here in question was one running with the land so as to bind the assignee of the water company as grantee of plaintiff's covenantor, the Thermalito Colony Company, association, because we think that, treated simply as a personal covenant or agreement under the allegations of the complaint, a court of equity would be warranted in enforcing it against the defendant. There can be no doubt of the proposition that personal covenants or agreements bestowing benefits and imposing restrictions upon the use of land may be enforced in equity, where a subsequent purchaser from the covenantor takes with notice of an existing equitable claim or interest in favor of another. The general rule is stated in Pomeroy's Equity Jurisprudence (2d Ed.) §§ 688 and 689: "The third and, in its practical effects, by far the most important rule is that a party taking with notice of an equity takes subject to that equity. The full meaning of this most just rule is that the purchaser of an estate or interest, legal or equitable, even for a valuable consideration, with notice of an existing estate, interest, claim, or right. or to some subject-matter, held by a third person, is liable in equity to the same extent and in the same manner as the person from whom he made the purchase; his conscience is equally bound with that of his vendor, and he acquires only what his vendor can honestly transfer. * A purchaser with notice

wards conveyed or sold to one who has notice of the covenants, the grantee or purchaser will take the premises bound by the covenant, and will be compelled in equity either to specifically execute it, or will be restrained from violating it; and it makes no difference whatever with respect to this liability in equity whether the covenant is or is not one which in law runs with the land.'" In Whitney v. Union Railway Company, 11 Gray (Mass.) 359, 71 Am. Dec. 715, it is said: "The precise form of the nature of the covenant or agreement is quite immaterial. It is not essential that it should run with the land. A personal covenant or agreement will be held valid and binding in equity on a purchaser taking the estate with notice. It is not binding upon him merely because he stands as an assignee of the party who makes the agreement, but because he has taken the estate with notice of a valid agreement concerning it which he cannot equitably refuse to perform.

These authorities undoubtedly sustain the proposition that where a proper case is presented, equity will enforce a personal covenant or agreement relative to land as effectually as would a court of law had the covenant been one clearly running with the land. And we think there can be no question but that the facts alleged in the complaint show a proper case for the application of the rule in the case at bar. There is every equitable reason for its application, and none to be suggested why it should not be applied. The Oroville Water Company acquired its title to the water works and right to distribute water throughout the colony tract, from the company from which plaintiff had purchased his land and right to the water, with full knowledge of the interest that plaintiff had acquired under his deed. It undoubtedly was advised of the situation and surroundings, and knew that the land on which this water was being distributed was only valuable by reason of the fact that water to irrigate it could be provided. The sole inducement to the purchaser of the tract acquired by plaintiff was that he could acquire a wa ter right in connection with it, that without it the land was practically worthless, and he did acquire this right practically for a cash consideration of $1,900, the right to have water distributed on his land at certain fixed rates, and on the faith of such purchase and contract set out his orchard and expended housands of dollars in caring for it; that without the use of this water his orchard would perish and his investment become a total loss. All these facts must, in the nature of things, have been known to the defendant corporation when it purchased from the association, and it particularly knew, so it is alleged, that plaintiff had purchased his land and accompanying water right from its grantor. Taking all these facts into consideration it would be clearly inequitable after plaintiff

had paid a full consideration of $1,900 for the water right, which he was enjoying at the time that the defendant made its purchase from the association, to say that the association could transfer all its interest in the water supply to the defendant, and that though the latter knew of plaintiff's purchase and right thereunder, it, nevertheless, acquired the property from the association free from any claim or interest in favor of plaintiff as to the particular water right which he had previously purchased, and likewise free from any obligation the association had incurred or assumed relative to it in his favor. If this were true, it would follow that defendant would be under no obligation to furnish plaintiff with any water for irrigation at all, with the inevitable result, if it did not, that his orchard would perish and his property become worthless. The facts recited in the complaint, we think, set forth a proper case in which equity should interfere to prevent this result, and that the order sustaining the demurrer was erroneous.

The judgment is reversed, with directions to the lower court to overrule the demurrer, and allow the defendant to answer.

We concur: BEATTY, C. J.; HENSHAW, J.

(149 Cal. 287)

PEOPLE v. FALLON. (Cr. 1,284.) (Supreme Court of California. May 31, 1906.) 1. CRIMINAL LAW-ADMISSIONS HOMICIDECORPUS DELICTI-PROOF.

In a prosecution for homicide, evidence of the corpus delicti held sufficient to warrant the admission of defendant's statements, made immediately after the shooting, that he had shot. his wife.

2. HOMICIDE-MALICE AFORETHOUGHT.

An instruction in a prosecution for homicide that malice aforethought is manifested by the doing of an unlawful or felonious act intentionally and without legal cause or excuse, not necessarily implying a pre-existing hatred or enmity towards the individual injured, was a correct statement of the law.

[Ed. Note.-For cases in point, see vol. 26, Cent. Dig. Homicide, §§ 15-18.]

3. SAME-INSANITY-DECLARATIONS-INSTRUC

TIONS.

Where, in a prosecution for homicide, the jury were fully instructed on the subject of insanity and of defendant's right to an acquittal in case the jury should find that at the time of the homicide he was insane from any cause and was unable to distinguish between right and wrong as to the act charged, defendant was not prejudiced by the court's refusal to charge that if the jury found him insane, they should disregard declarations made by him at the time of the homicide.

[Ed. Note. For cases in point, see vol. 26, Cent. Dig. Homicide, §§ 715-718.] 4. SAME-FORM OF INSTRUCTION.

Where, in a prosecution for homicide, declarations of defendant, made immediately after the shooting, that he had shot his wife, together with accompanying statements assigning his reasons for so doing, were admitted in evidence, a request to charge that if the jury were satisfied by a preponderance of the evidence

86 P.-44

that defendant, at the time of the fatality, was in such a state of mind that he could not distinguish between right and wrong as to the act charged, the jury should disregard, as a circumstance tending to convict him, any and all statements alleged to have been made by him at the time, for the reason that if he was insane he was not responsible and could not be bound by his statements was properly refused, as ignoring the jury's right to consider defendant's statements in determining the question of his sanity.

In Bank. Appeal from Superior Court, City and County of San Francisco; William P. Lawlor, Judge.

Thomas P. Fallon was convicted of murder, and he appeals. Affirmed.

J. J. Guilfoyle, Jr., and Frank V. Cornish, for appellant. U. S. Webb, Atty. Gen., J. C. Daly, Deputy Atty. Gen., and Lewis F. Byington, Dist. Atty., for the People.

LORIGAN, J. Defendant was prosecuted for the murder of his wife, Agnes Fallon, in San Francisco, April 1, 1904, convicted, sentenced to be executed, and appeals. Several grounds are urged for a reversal.

It is insisted that the court erred in ad mitting evidence of statements, made by defendant immediately after the shooting, that he had shot his wife, on the ground that at the time such evidence was admitted the corpus deliciti had not been proven. When these admissions were received the evidence showed that about 6 o'clock on the evening of April 1, 1904, the defendant and his wife entered her room at 949 Mission street (they were living apart, she having commenced an action for divorce from him a couple of days previously); that shortly thereafter pistol shots, fired in rapid succession in the room, were heard; that defendant immediately came out of the room with a smoking pistol in his hand, which he placed in his pocket, and when it was taken from him it was warm; that this pistol had been in the possession of defendant for several days previously and when taken from him at the time of the shooting contained four exploded cartridge shells; that immediately after the shooting his wife was found lying on the floor of the room under a table with four bullet wounds in different part of her body-one in the throat another in the heart-from the effects of which she immediately died. This evidence was sufficient proof of the corpus delicti or of the elements of crime-the death of deceased as the result of criminal means or agency-to warrant the admissions of defendant that he killed her; admissions which the evidence complained of shows he made as he came out of the door with the pistol in his hand and which he subsequently reiterated. This proof of the corpus delicti, existing at the time these particular objections to the admissions of defendant were offered, was further supplemented by additional evidence on that subject, which makes the further complaint of defendant that the court erred in

refusing to advise the jury to acquit for failure of such proof entirely without merit.

Complaint is made relative to instructions. The court instructed the jury fully on the different degrees of murder, and upon the subject of "malice aforethought," express and implied, in its relation to the crime of murder. The court defined these different kinds of malice aforethought as they are defined in the Code itself, and continuing, used this language: "Malice aforethought, of either kind, is manifested by the doing of an unlawful or felonious act intentionally and without legal cause or excuse. It does not imply a pre-existing hatred or enmity towards the individual injured." It is of this quoted portion that complaint is made. We perceive no valid ground for criticism of it. exactly similar instruction was complained of, but was approved, in People v. Balkwell, 143 Cal. 263, 76 Pac. 1017, as being a correct statement of the law.

An

The only defense interposed on behalf of defendant at the trial was that at the time of the homicide he was insane. Among other instructions on the matter of insanity requested by counsel for defendant was the following: "If you are satisfied by a preponderance of evidence that the defendant at the time of the fatality was in such a state of mind that he could not distinguish between right and wrong as to the act charged, you should disregard, as a circumstance tending to convict him, any and all statements alleged to have been made by him at that time for the reason that if then insane he was not responsible for and cannot be bound by any statement or statements made by him at that time." This instruction the court refused to give, and counsel now insists that the refusal was error. We cannot agree with him. The jury were fully instructed under other proffered instructions of the defendant given by the court, and in the instructions given by the court of its own motion, upon the subject of insanity and of the right of defendant to an acquittal should they find that at the time of the homicide he was insane from any cause-unable to distinguish between right and wrong as to the act charged. The jury were particularly instructed at the request of defendant that if, at the very time of the commission of the act alleged against him he was mentally unconscious of the nature of the act in which he was engaged, he was legally irresponsible for it and should be acquitted. It cannot be said that the defendant was prejudiced in refusing to give an instruction telling the jury that, if they found him insane, then to disregard declarations made by him at the time of the homicide when they were repeatedly told that a finding of insanity itself entitled him to an acquittal.

But, aside from this, the instruction as requested was misleading. The statements made by defendant, which his counsel sought

by this instruction to have the jury informed that they should disregard if they were satisfied defendant was insane, were his declarations made immediately after the shooting that he had shot his wife and certain accompanying statements assigning his reasons for doing so. The instruction as tendered is open to the objection that it leaves the jury to infer that they may only take into consideration the statements of defendant accordingly as they find from the other evidence upon the subject whether at the time of the killing he was sane or insane; that, if from such evidence they find him sane the statements may be considered as a circumstance tending to convict; if they find him insane the statements must be disregarded as a circumstance tending to that end. The instruction ignores entirely the right of the jury to take these statements into consideration in determining the question of sanity itself, or rather leaves an inference that they are only to be considered after sanity is otherwise established. Of course, no such limitation on the right of the jury to consider such statements is warranted. When the sanity or insanity of a defendant at a given time is involved, it is always important and proper that his acts and declarations at such time should be considered by the jury in determining that question, and any instruction which even inferentially limits or restrains that right is improper. may be cases (although the evidence in the case at bar does not bring it within the class) where peculiar circumstances might call for an instruction to the jury to disregard incriminating admissions made by a defendant should the jury find him insane when they were made an instruction in addition to general instructions to be applied in determining the question of sanity, but such special instructions should at least be framed so that the jury would not be left under the erroneous impression that the admissions referred to were not to be considered by them as bearing on the question of sanity but only to be disregarded as a "circumstance tending to convict" should the other evidence in the case show that the defendant was insane when he made them.

There

It is true, as asserted by counsel for defendant, that, in the case of People v. Wreden, 59 Cal. 396, it was held, among other errors warranting a reversal, that the lower court should have given an instruction tendered by the defendant in that case that "if, at the time of the making of the alleged statements,' the jury were 'satisfied that the defendant was insane,' they 'should disregard them entirely, no matter what caused the insanity." This, as we have quoted it, is the entire instruction as it appears to have been there requested. The opinion in that case does not disclose the facts or circumstances under which the statements of the defendant referred to were made, or indicate the statements themselves to which the instruc

tion was intended to apply. It is probable that peculiar facts in that case, which did not exist in the case at bar, may have made the instruction a proper one to have been given, independent of other general instructions as to the law to be applied in determining the question of sanity. But whether they did or not it will be noticed that the instruction in the Wreden Case is very different from the one under consideration here. The giving of it would be in entire harmony and consonant with the right of the jury to take such statements into consideration in determining the question of sanity. The instruction there was open to no objection that It entirely limited the jury to a consideration only of the statements of the defendant as a circumstance tending to convict, ignoring them as a proper element to be taken into consideration in determining the question of sanity or insanity, while this apparent limitation and restriction on the right of the jury to consider it for that purpose is the particular vice of the instruction requested at bar.

This disposes of all the points made on appeal, and finding no error in the record, the judgment and order denying a new trial, which are appealed from, are affirmed.

We concur: SLOSS, J.; HENSHAW, J.; ANGELLOTTI, J.; SHAW, J.; HALL, J.

NOTE. Justice MCFARLAND being unable to act, Justice HALL, one of the justices of the District Court of Appeal for the First Appellate District, participates herein pro tempore. pursuant to section 4, art. 6, of the Constitution.

(149 Cal. 269)

JERSEY ISLAND DREDGING CO. v. WHITNEY. (S. F. 3,127.) (Supreme Court of California. May 28, 1906. Rehearing Denied June 25, 1906.)

1. EVIDENCE-PAROL EVIDENCE-CONTRADICTING RECEIPT.

Where defendant claimed that a receipt was given in full satisfaction of all work done and to be done under a contract, while plaintiff contended, in accordance with the true construction of the receipt, that it only included plaintiff's claim for work done up to and including the day on which the receipt was executed, parol evidence as to the circumstances under which the receipt was given was admissible to prove defendant's contention.

[Ed. Note. For cases in point. see vol. 20, Cent. Dig. Evidence, §§ 1829-1842, 2083.] 2 APPEAL-PREJUDICE.

Where answers of a witness, objectionable as stating the witness' conclusions, constituted no more than a mere summary, in the form of a conclusion or opinion, of the previous testimony of the witness, and could have added nothing to the effect thereof in the mind of the trial judge. the admission of such conclusions was harmless.

3. RELEASE-CONSTRUCTION.

Where a bill for services was dated September 17, 1900, and contained a claim for $721.35, purporting to be for work to and including September 13th, and across the face of the bill was written a statement that $650 was received in

full satisfaction of all claims, such writing. though treated as a release, instead of a mere receipt, was prima facie effective only as a discharge of the services itemized in the bill.

[Ed. Note. For cases in point, see vol. 42, Cent. Dig. Release, §§ 73-76.] Beatty, C. J., dissenting.

In Bank. Appeal from Superior Court, City and County of San Francisco; Thos. F. Graham, Judge.

Action by the Jersey Island Dredging Company against Arthur L. Whitney. Judgment in favor of plaintiff and an order denying defendant's motion for a new trial were reversed by Court of Appeal. 86 Pac. 509. Affirmed. Myrick & Deering, for appellant. Walter H. Linforth, for respondent.

ANGELLOTTI, J. This action was brought by plaintiff to recover the sum of $550.45, alleged to be due it from defendant, for certain dredging work done by it on defendant's ranch at the head of San Pablo Bay, between the 19th and 30th days of September, 1900, at the agreed price of $70 per day of 22 hours. Plaintiff had judgment for the full amount claimed. and defendant appeals from such judgment, and from an order denying his motion for a new trial.

Among other defenses, the defendant alleged that all claims of plaintiff on account of any dredging work had been fully compromised, satisfied, and discharged. The trial court found against defendant upon this issue. The principal point made here is as to the rulings of the trial court in admitting certain evidence upon this issue. To a proper understanding of these rulings, a brief statement of facts is essential. According to the contract between the parties, the dredger was hired by defendant at a certain rate per diem of 22 hours, viz., $70, the dredging work to be done under the direction of defendant, and to continue during his pleasure; the contract not specifying, describing, or limiting the work to be done. On September 1, 1900, a bill had been presented by plaintiff to defendant for work done prior to that date, amounting at the prescribed rate to $1,097.75. This bill itemized the days and hours of work. Upon this bill, defendant had paid $1,000. On or about September 17, 1900. plaintiff presented to defendant a bill, bearing date September 17, 1900, for $721.35, pur porting to be for work to and including September 13th. Upon this bill the charges were itemized as follows. viz.: "Bal. due on bill Sept. 1st, $97.75; 143 hour's work, $455.00; 53 hours aground, $168.60." At tached thereto was an Itemized statement of the hours of actual work each day. At this time the dredger was still engaged in the service of defendant, and continued so to be to and including the 1st day of October, and between September 17th and October 1st the work for which recovery is here sought was done. Upon the presentation of the bill of September 17th, some dispute arose between plaintiff's president, Mr.

Wright, and defendant, as to the precise nature of which there is a conflict of evidence, which continued over a period of several days, until, on September 25th, defendant paid Wright $650, and wrote across the face of the bill the following, viz.: “Sept. 25, 1900. Paid $650 in full satisfaction of all claims and guaranteed against liens." This was signed by Wright as follows: "Jersey Island Dredging Co., per W. H. Wright, Pres't." At this time no bill for any work done subsequent to September 13th had been presented. It is this statement, written across the face of the bill of September 17th, that is claimed by defendant to constitute a written contract of compromise and release of all claims on account of dredging work, not only for such work as was done prior to September 17th and embraced in said bill, and that done between September 17th and September 25th, but also for that done subsequent to September 25th.

It is apparent that, construing this writ ing most favorably to defendant, it could not include any claim for work done subsequent to September 25th, the day it was executed, and that defendant was compelled to resort to parol testimony to substantiate the claim made by him, viz., that the $650 was paid and received in full satisfaction of all work done and to be done. This he was allowed to do, and he testified that there was a dispute both as to the character and manner of work and the charges therefor, and that he and Wright agreed that Wright would go on and finish such dredging work as remained to be done, and that he would pay Wright $650, with the understanding that such pay. ment ended the matter, and with the $1,000, already paid, constituted full payment for all services rendered and to be rendered under the contract. This was the only claim made by defendant, and there was no pretense that the writing was made to cover, in addition to the charges specified in the bill, merely amounts due at its date, September 25th. As we have said, defendant was allowed to give this evidence to support a claim at variance with the terms of the writing. In rebuttal, Wright was allowed to testify that the only item in the bill of September 17th that was ever disputed was the charge of $168.60 for 53 hours while the dredger was aground; Wright claiming that such charge was entirely proper and cus tomary, and that, after several interviews, he agreed to make a slight reduction, and accept $650, if Whitney would pay that sum at once. He further testified that there was no discussion or consideration as to any other bill or claim than the one presented, and no discussion as to the payment of $650 being in full as to anything except that bill, and that at the time of the payment he did not know what work had been done since the making of, the bill. Thus far, he certain. ly did no more than to testify, in reply to

the testimony of defendant, as to the circum. stances under which the payment was made and the writing signed, and to contradict the testimony of defendant as to a parol agreement at variance with the terms of the writing. He was then asked: "When you accepted this $650 and signed this paper, what were you settling?" and answered: "That bill," referring to the bill of September 17th. He was then asked: "Were you settling anything else?" and answered: "No sir." The questions were each objected to on the sole ground that they constituted efforts to contradict a writing by parol evidence, and the objections were overruled. These are the only rulings relative to the admission of evidence which are assigned as error and discussed in defendant's brief.

The questions were objectionable as calling for the mere opinion or conclusion of the witness, but no such objection was made. And even if error was committed in the admission of such testimony, we would not be justified in holding it to be prejudicial, for the answers of the witness did no more than to give the conclusion which would necessarily follow his testimony as to the circumstances under which the alleged release was signed. The answers to the questions under consideration constituted no more than a mere summary, in the form of a conclusion or opinion, of the previous testimony of the witness, and could have added nothing to the effect thereof in the mind of the trial judge. There was certainly no error in the admission of such previous testimony. Assuming that the writing relied on constituted a valid con. tract or release, instead of a mere receipt, the question still remained as to what was released thereby. It is true the writing stated that the $650 was "in full satisfaction of all claims"; but, taking into consideration the fact that this was written across the face of the itemized bill of September 17th and that the amount named and paid was less than the total amount of such bill, it cannot reasonably be claimed that it clearly and explicitly shows a release and satisfaction of all claims, of whatever nature, from the beginning of the world to the date thereof. Taking the whole writing together, which includes, not only the statement as to payment, but also the bill on which the statement is written, one might reasonably conclude therefrom that the whole subjectmatter of the release was the bill upon which it was written and the claims evidenced thereby, and, in the absence of any evidence at all as to the surrounding circumstances, there would be strong ground for holding this to be the proper construction of the writing. Under these circumstances, parol evidence as to the surrounding circumstances was admissible, in order that the trial judge might be placed in the position of those whose language he was to interpret. Civ. Code, § 1647; Code Civ. Proc. § 1860. Taking