the demand is made. It simply provides that certain documentary evidence shall be received and considered, if properly authenticated.

how the President can, by virtue of the powers vested in him, in the absence of legislation, constitutionally supply the necessary judicial and executive

"It shall be lawful for the Secretary of State, under his hand and seal of office, to order the person so committed to be delivered to such person as shall be authorized, in the name and on behalf of such foreign government, to be tried for the crime of which such person shall be so accused, and such person shall be delivered up accordingly; and it shall be lawful for the person so authorized to hold such person in custody, and to take him to the territory of such foreign government, pursuant to such treaty. If the person so accused shall escape out of any custody to which he shall be committed, or to which he shall be delivered, it shall be lawful to retake such person in the same manner as any person, accused of any crime against the laws in force in that part of the United States to which he shall so escape, may be retaken on an escape.”

Of the five remaining sections, four relate respectively to the time allowed for the actual extradition of an accused person after his commitment, to the protection of accused persons delivered up to the United States by any foreign government, to the powers of the agents duly appointed by the United States to receive such persons, and to the penalty for unlawfully interfering with them in the discharge of their duties. The other section declares that all these provisions "shall continue in force during the existence of any treaty of extradition with any foreign government, and no longer." The effect of this declaration is to confine the operation of the law strictly to the execution of extradition treaties, and, of necessity, to limit the powers which it grants exclusively to that function. The obvious implication is that, in the absence of such treaties, there is no authority for any extradition at all. The only law relating to the subject expressly limits its own application to the execution of these treaties.

These provisions of law, designed to give effect to extradition treaties, and deriving their constitutional authority from this fact, not only imply their own necessity, but also empower and direct the requisite judicial and executive agency for this purpose, and, that too, without any interference with the terms of these treaties. The Government of the United States has made treaties with other governments relating to the arrest and restoration of deserting seamen from foreign vessels; and section 5,280 of the Revised Statutes of the United States provides for the execution of these treaties so far as they are operative in this country, assuming the necessity of legislation to carry them into effect. Precisely the same assumption is made in the legislation that relates to treaties for the extradition of fugitive criminals. Both classes of treaties pledge the faith of the United States; and it is difficult to see

tions. for carrying these treaties into effect. There is not a single extradition treaty of the United States that does not leave undetermined a variety of important questions that can be settled only by legislation, and hence, not one that does not need law as an auxiliary to its execution. That law neither the President nor the judiciary can supply. Congress has supplied it, and thus put an end to a question that was once the subject of conflicting opinions.

EFFECT OF THE WAR ON LIFE INSURANCE CONTRACTS.

SUPREME COURT OF THE UNITED STATES-OCTOBER TERM, 1877.

NEW YORK LIFE INSURANCE CO., Plaintiff in Error, v. DAVIS.

S., residing at Petersburg, Virginia, before the war, procured a policy of insurance upon his life in The N. Y. Insurance Company, located in New York. The policy was conditioned to be void if the premiums were not paid when due. The premiums were, up to the commencement of the war, paid to an agent of the company who resided at Petersburg, who was authorized to receive them, and who was furnished receipts for such a purpose. After the war commenced, S. tendered the premiums to the agent, who refused to receive them, and tender was also made after the close of the war to him with like result. Held, that the war suspended the contract of agency between the company and its agent in the absence of an agreement to the contrary and the agent had no authority to receive the premiums, and a tender to them did not avail to save the rights of S. under the policy.

IN

error to the Circuit Court of the United States for the eastern district of Virginia. The facts appear in the opinion.

Mr. Justice BRADLEY delivered the opinion of the court.

This was an action on a policy of life insurance issued by the plaintiff in error, a New York corporation, before the war, upon the life of Sloman Davis, a citizen and resident of the State of Virginia. The policy contained the usual condition, to be void if the renewal premiums were not promptly paid. They were regularly paid until the beginning of the war. The last payment was made December 28, 1860. The company, previous to the war, had an agent, A. B. Garland, residing in Petersburg, Virginia, where the assured also resided, and premiums on this policy were paid to him in the usual way, he giving receipts therefor, signed by the president and actuary, as provided on the margin of the policy, which were usually sent to the agent about thirty days in advance of the maturity of the premium. About a year after the war broke out, the agent entered the Confederate service as a major, and remained in that service until the close of the war.

Offer of payment of the premium next due was made to the agent in December, 1861, which he declined to receive, alleging that he had received no receipts from by the Confederate government if he did receive it. the company, and that the money would be confiscated

A similar offer was made to him after the close of the war, and was also declined. The agent testified that

he refused to receive any premiums and had no communication with the company during the war, and did not resume his agency after it terminated.

Sloman Davis died in September, 1867.

The plaintiff below was assignee of the policy, and claimed to recover the amount thereof, $10,000, upon the ground that he was guilty of no laches, and that at the close of the war the policy revived.

It is unnecessary to state, in detail, the proceedings at the trial. The plaintiff contended, and the judge instructed the jury, in substance, that they might infer from the evidence that the place of payment intended by the parties was at the residence of the plaintiff, and that if the company did not furnish receipts to its agent, so that the premiums could be paid according to the terms of the policy, it was not the fault of the plaintiff; and if he was ready and offered to pay his premium to the agent, there could be no forfeiture of the policy, if within reasonable time after the war he endeavored to pay his premiums, and the company refused to receive them. On the other hand the defendant contended that the war put an end to the agency of Garland, and the offer to pay the premium to him was of no validity, and the failure to pay rendered the policy void. This view was rejected by the court, and a verdict was rendered for the amount of the policy, less the amount of certain premium notes which had been given by the insured.

It is obvious that this case is nearly on all fours with that of The New York Life Insurance Company v. Stratham, 93 U. S. 24, decided by this court at the last term. As we still adhere to the views there expressed, we do not deem it necessary to reiterate them. But the questions which received special discussion on that occasion were, whether a failure to pay the stipulated premiums involved a forfeiture of the policy, although such failure was caused by the existence of the war; and what were the mutual rights of the parties consequent upon forfeiture under such circumstances. The point which is now most strenuously relied on, namely, the supposed power of the agent of a northern company to receive premiums in a southern State in insurrection after the war broke out, and the supposed right of a policy-holder to tender them to such agent, although involved in the case,- was not specially adverted to in the opinion of the court. We propose to add some observations on this branch of the subject.

First, however, a few words with regard to the position that there was competent evidence for the jury to infer that the place of payment intended by the parties was the place of residence of the assured. This we think is entirely untenable. The legal effect of the policy itself was that payment should be made to the company at its domicile. The indorsement on the margin, which is much relied on by the plaintiff's counsel, has no such effect as he attributes to it. It is in these words: "All receipts for premiums paid at agencies are to be signed by the president or actuary." This is simply a notice to the assured that if he shall pay his annual premium to an agent, or at an agency, he must not do so without getting a receipt signed by the president or actuary of the company. How this caution can possibly be construed into an agreement on the part of the company to make any particular agency the legal place of payment of premium it is difficult to see. The circumstances show nothing but the common case of the establishment of an agency for the mutual convenience of the parties; and do not present the slightest ground for varying the legal effect

of their written contract. We think, therefore, that the charge was erroneous on this point. Of course, we do not mean to be understood as holding that, as long as an agency is continued, a tender to the agent would not be valid and binding on the company.

But we deem it proper to consider more particularly the question of agency and the alleged right of tendering premiums to an agent during the war.

That war suspends all commercial intercourse between the citizens of two belligerent countries or States, except so far as may be allowed by the sovereign authority, has been so often asserted and explained in this court within the last fifteen years, that any further discussion of that proposition would be out of place. As a consequence of this fundamental proposition, it must follow that no active business can be maintained, either personally, or by correspondence, or through an agent, by the citizens of one belligerent with the citizens of the other. The only exception to the rule recognized in the books (if we lay out of view contracts for ransom and other matters of absolute necessity) is that of allowing the payment of debts to an agent of an alien enemy, where such agent resides in the same State with the debtor. But this indulgence is subject to restrictions. In the first place, it must not be done with the view of transmitting the funds to the principal during the continuance of the war; though if so transmitted without the debtor's connivance, he will not be responsible for it. Washington, J., in Conn. v. Penn., Peter's C C. Rep. 525; Buchanan v. Curry, 19 Johns. 141. In the next place, in order to the subsistence of the agency during the war, it must have the assent of the parties thereto - the principal and the agent. As war suspends all intercourse between them, preventing any instructions, supervision, or knowledge of what takes place, on the one part; and any report, or application for advice, on the other, this relation necessarily ceases on the breaking out of hostilities, even for the limited purpose before mentioned, unless continued by the mutual assent of the parties. It is not compulsory on either side; and it cannot be made compulsory to subserve the ends of third parties. If the agent continues to act as such, and his so acting is subsequently ratified by the principal, or if the principal's assent is evinced by any other circumstances, then third parties may safely pay money for the use of the principal into the agent's hands, but not otherwise. It is not enough that there was an agency prior to the war. It would be contrary to reason that a man, without his consent, should continue to be bound by the acts of one whose relations to him have undergone such fundamental alteration as that produced by a war between the two countries to which they respectively belong; with whom he can have no correspondence; to whom he can communicate no instructions, and over whom he can exercise no control. It would be equally unreasonable that the agent should be compelled to continue in the service of one whom the law of nations declares to be his public enemy. If the agent have property of the principal in his possession or controì, good faith and fidelity to his trust will require him to keep it safely during the war, and to restore it faithfully at its close. This is all. The injustice of holding a principal bound by what an agent, acting without his assent, may do in such cases, is forcibly illustrated by Mr. Justice Davis in delivering the opinion of this court in Fritz v. Stover, 22 Wall. 206. In that case the agent had collected in Confederate funds the amount due on a bond. Having asserted that the agent had

no authority to do this, the learned judge adds: “If it were otherwise, then, as long as the war lasted, every northern creditor of southern men was at the mercy of the agent he had employed before the war commenced. And bis condition was a hard one. Directed by his government to hold no intercourse with his agent, and therefore unable to change instructions which were not applicable to a state of war, yet he was bound by the acts of his agent in the collection of his debts the same as if peace prevailed. It would be a reproach to the law if creditors, without fault of their own, could be subjected to such ruinous consequences." These observations have a strong bearing upon the point now under consideration.

What particular circumstances will be sufficient to show the consent of one person that another shall act as his agent to receive payment of debts in an enemy's country during war may sometimes be difficult to determine. Emerigon says that if a foreigner is forced to depart from one country in consequence of a declaration of war with his own, he may leave a power of attorney to a friend to collect his debts, and even to sue for them. Traité des Assurances, vol I, p. 567. But though a power of attorney to collect debts, given under such circumstances, might be valid, it is generally conceded that a power of attorney cannot be given, during the existence of war, by a citizen of one of the belligerent countries resident therein to a citizen or resident of the other, for that would be holding intercourse with the enemy, which is forbidden. Perhaps it may be assumed that an agent ante bellum, who continues to act as such during the war, in the receipt of money or property on behalf of his principal, where it is the manifest interest of the latter that he should do so, as in the collection of rents and other debts, the assent of the principal will be presumed unless the contrary be shown; but that, where it is against his interest, or would impose upon him some new obligation or burden, his assent will not be presumed, but must be proved, either by his subsequent ratification or in same other manner.

In some way, however, it must appear that the alleged agent assumed to act as such, and that the alleged principal consented to his so acting. It is believed that no well-considered case can be found auterior to these life insurance cases which have arisen out of the late civil war, in which the existence or continuance of an agency, under the circumstances above referred to, have been established contrary to the assent of the alleged parties to that relation. The case of Conn. v. Penn., Peters' C. C. Rep. 496, is the leading authority on this subject in this country. The question in that case was whether the claimants of land in Pennsylvania under contracts of purchase from the proprietaries (the Penns) before the revolutionary war, were entitled to an abatement of interest during the war; and Justice Washington held that this depended on the question whether, during the war, the proprietaries (being alien enemies) "had in the United States a known agent, or agents, authorized to receive the purchase-money and quit-rents due to them from the complainants" (the vendees). To enable the parties to adduce proof on this point the court allowed further evidence to be taken. The same thing was held, at the same term, in the case of Dennison et al. v. Imbrie, 3 Washington's C. C. Rep. 403, where Justice Washington says: "We think that if the alien enemy has an agent in the United States, or if the plaintiff himself was in the United States, and either of these

facts known to the debtor, interest ought not to abate." It is obvious that, in these cases, the judge assumed that the relation of agency, if it existed, did so with the mutual consent of the parties thereto. And the same observation, it is believed, may be made with regard to all other cases on the subject except some that have been very recently decided.

The same inference may be deduced from the cases decided in this court when the subject of payment to agents in an enemy's country has been discussed. Amongst others we may refer to the following: Ward v. Smith, 7 Wall. 447; Brown v. Piatts, 15 Wall. 177; Montgomery v. United States, id. 395; Fretz v. Stover, 22 Wall. 198.

66

In some recent cases in certain of the State courts of last resort, for whose decisions we always entertain the highest respect, a different view has been taken; but we are unable to concur therein. In our judgment, the unqualified assumption on which those decisions are based, namely, once an agent always an agent," or, in other words, that an agency continues to exist notwithstanding the occurrence of war between the countries in which the principal and the agent respectively reside, is not correct; and that the continuance of the agency is subject to the qualifications which we have stated above.

Now, in the present case, except at the very commencement of the troubles, before the president's proclamation of non-intervention had been issued, and when it was yet uncertain what the differences between the two sections would amount to, there is not the slightest evidence that the defendant authorized Garland to act for it at all, and the latter expressly refused to do so when requested, both on the ground of having received no receipts from the company (which were his only authority for receiving payments), and of the liability of the funds to be confiscated in his hands. The war suspended his agency for all active purposes, and it could not be continued even for the collection of premiums without the defendant's consent; and this, so far as appears, was never given, either expressly or by subsequent ratification. Under these circumstances it cannot be affirmed that the plaintiff could bind the defendant by a tender of payment to the supposed agent. However valid a payment may be, if made to an agent in time of war, where he consents to act as such, and has the assent of his principal in so acting, an offer of payment cannot have any force or effect if neither of these circumstances exists.

Waiving, therefore, the consideration of any question that may be made with regard to the validity of an insurance on the life of an alien enemy, we think that in the present case there was not the slighest foundation for the court to charge, as it did in effect, that a tender of the premium to Garland in Petersburg was a good tender and binding on the company.

We do not mean to say that if the defendant had continued its authority to the agent to act in the receipt of premiums during the war, and he had done so, a payment or tender to him in lawful money of the United States would not have been valid; nor that a stipulation to continue such authority in case of war, made before its occurrence, would not have been a valid stipulation; nor that a policy of life insurance on which no premiums were to be paid, though suspended during the war, might not have revived after its close. We place our decision simply on the ground that the agency of Garland was terminated by the

breaking out of the war, and that, although, by the consent of the parties, it might have been continued for the purpose of receiving payments of premiums during the war, there is no proof that such assent was given either by the defendant or by Garland; but that, on the contrary, the proof is positive and uncontradicted, that Garland declined to act as agent.

The judgment of the Circuit Court must be reversed, with directions to award a venire facias de

novo.

REPRESENTATIONS ON APPLICATION FOR LIFE INSURANCE.

SUPREME COURT OF THE UNITED STATES-OCTOBER TERM, 1877.

MUTUAL BENEFIT LIFE INS. Co., plaintiff in error, v. HIGGINBOTHAM, administrator.

1. One whose life had been insured in a company at Newark, New Jersey, but who had failed to keep up the premiums, so that the policy lapsed, applied for a reinstatement of the policy to the agent at Washington, D. C., on the first of October. He paid the premium and gave his certificate of health to the agent on that day, and the physician of the company signed his certificate of examination, all of which were forwarded at once to the company. On the 12th of October the company returned its renewal receipt dated back to the time of the lapsing of the policy, and this receipt was, on the 14th, given to the insured, who made no statement as to his health then. In an action on the policy it was claimed by the company that between the 1st and the 14th of October there was a change in the health of the insured that would have caused the rejection of the policy, and the court was, at trial, asked to charge that the representation, as to health, was a continuing one up to the 14th, which request was refused. Held, that such refusal was no error. The jury would have been warranted in finding that the contract was understood and intended by the parties to take effect by relator to the 1st of October, and the question was proper for submission to the jury.

2. Where the disposition of a subject by a judge can work no legal injury to the party objecting to it, there is no

error.

error to the Supreme Court of the District of Columbia. The facts fully appear in the opinion. Mr. Justice HUNT delivered the opinion of the

court.

This was an action by Mrs. Martha J. Day against the Mutual Benefit Life Insurance Company (incorporated by the State of New Jersey), to recover the amount of a policy of insurance issued to Mrs. Day upon the life of her husband, the late Dr. Richard H. B. Day, of Washington, in which judgment was rendered against the company for the amount insured, $5,000, and interest.

The policy, dated the 16th of July, 1869, was for life, and stipulated for the payment of the annual premium of $137.50 on or before twelve o'clock on the 16th day of July in every year, and provided that "in case the said premium shall not be paid on or before the several days hereinbefore mentioned for the payment thereof, at the office of the company, in the city of Newark, or to agents, when they produce receipts signed by the president or the treasurer, then, and in every such case, the said company shall not be liable to the payment of the sum insured, or any part thereof, and this policy shall cease and determine."

The first premium was duly paid; but when the next premium became due, on the 16th of July, 1870, it was not paid.

In the following October, Dr. Day made application to the company for the reinstatement of the policy, and the company consented to reinstate it upon the conditions and in the manner following.

On the 1st of October, 1870, Dr. Day paid the premium to the agent of the company at Washington, and received a receipt for the same. At the same time he gave to the agent his certificate of health, and the physician of the company signed his certificate of examination, which were forwarded to the company at Newark, New Jersey.

The policy was renewed and the renewal-receipt was sent by the company to its agent, October 12, 1870. This receipt was dated July 16, 1870, and was given to Day on the 14th of October.

On the 22d day of January following Dr. Day died. Eleven special pleas are interposed, to which it is not necessary particularly to refer, as the questions to be decided arise upon the rulings of the judge at the trial, made upon points not connected with the pleadings.

The chief subject of contention arises upon the refusal of the judge to charge as requested by the defendant in the following prayers:

1. If the jury find from the evidence that the certificate of health in evidence was made by Dr. Day, the insured, on or about the 1st of October, 1870, and by him delivered to the agent of the defendant, at Washington city, and by such agent sent to the principal office of the defendant, at Newark, New Jersey, and that the receipt in evidence, dated July 16, 1870, was thereupon forwarded from the main office of the defendant to its agent at Washington city, and by him delivered to the insured on or about the 14th day of October, 1870, and that, between the time when said certificate was made and the time of the delivery of said receipt to the insured, Dr. Day had had any derangement of health, and did not disclose that fact to the agent of the defendant when the receipt was handed to him by the agent, or before, they will render a verdict for the defendant npon the sixth plea.

2. On refusing to instruct the jury as prayed by defendant, as follows: If the jury find from the evidence that when the certificate in evidence, dated October 1, 1870, was given to the agent of the defeudant at Washington city, the latter was not authorized to and did not assume to reinstate the policy in suit, but accepted the premium and forwarded the certificate to his principal, and that the receipt in evidence, dated July 16, 1870, was then in the home office of the defendant, in New Jersey, and that said receipt was forwarded to the agent of the defendant on or about the 12th day of October, 1870, and by him delivered to the insured on or about the 14th day of the same month; and if the jury further find, that after the date of said certificate, and before the delivery of said receipt to the insured, the insured had had any derangement of health, or that at the time of the delivery of said receipt to him he was not in sound health, they would render a verdict for the defendant.

The state of Dr. Day's health during the summer and autumn of 1870 was the subject of contradictory testimony. The defendant gave evidence tending to prove that he was compelled by ill-health to give up his business as a teacher on the 18th day of October, 1870; that for several weeks prior to that time he was much debilitated, and was conscious of that fact; that in November he had the consumption, of which he died in January, and that he was in feeble and disordered health from the spring of 1869 until his death. The plaintiff on the other hand gave evidence tending to show that he was in sound health till the latter part of October, 1870, and that he did not

have the consumption until the month of November, 1870.

The exceptions we are to consider assume that on the first day of October, 1870, when he presented his certificate of health to the agent at Washington, Dr. Day was in a condition of health that made him a satisfactory subject for the reinstatement or continuance of his policy of insurance.

It is contended that between the time of thus making and presenting his certificate to the agent and the date (fourteen days later) on which the agent delivered to him the receipt by which his insurance policy was continued in force until July 16, 1871, there had been a change in his health which would have caused the rejection of his application to continue the policy had such change been made known to the company, and that the failure to make known such change was a fraud, which invalidated the policy thus renewed or continued.

It is not contended that there were any false representations made on the 14th of October, or any devices or contrivances to deceive the company. No affirmative action on that occasion is complained of. The contention is that the representation made on the 14th of October was a continuing one, from the time it was made till the delivery of the renewal-receipt on the 14th, and that if not true at the latter date, the contract was avoided.

In reaching a conclusion on this point, we may notice -1st, that no inquiry was made of Day or demand for information as to his condition between the 1st and the 14th of October. The company was particular and specific in its inquiries as to his condition on the first of the month, and required prescribed forms of evidence as to that condition. There it stopped, and neither by expression nor by implication intimated a desire for later information.

It is to be observed, 2dly, that the issuance made to him on the 14th of October relates back to the 16th of July in the same year. The certificate reads: "Policy No. 59,687, on the life of Richard H. B. Day, is hereby continued in force for one year from date (July 16, 1870), settlement of the premium having been made as per margin." The settlement in the margin showed the payment of $137.50, being the amount of the premium of insurance for one year on the sum of $5,000, as stated in the original policy of insurance.

It will be observed, 3dly, that the distance between Washington and Newark is about two hundred miles only, and that the certificates of Dr. Day's health and the application which were forwarded by the agent to the company at Newark would, in the ordinary course of the mails, reach the office at Newark on the morning or during the day of the 2d; that all the forms of the company to authorize a renewal were complied with, and that the risk was such as the company would accept as a desirable one, and that the receipt for the renewal was received in Washington on or about the 14th of October, and was on that day delivered to Dr. Day.

The prayer of the insurance company did not include a request that the jury should determine as a matter of fact whether, upon the evidence submitted, the representation was or was not a continuous one, whether the contract was consummated on the 14th of October, or by relation on the 1st of October; but the Judge was requested to charge, as a matter of law, that the representation was a continuing one.

The facts referred to, we think, show that although

actually completed on the 14th of October, the jury would have been warranted in finding that the contract was understood and intended by the parties to take effect by relation as of the first of that month. The money was paid to the agent at Washington on that day. The insurance was post-dated so as to include that day. The full amount of the premium for one year was paid by the applicant, viz., $137.50. The company cut off the insured from two and a half months of his policy when they issued it on the 1st of October, and dated it as of July 16th, although taking payment of the premium for a year. We think that they did not necessarily intend to cut off an additional fourteen days, but may have meant it to be as of the date when the insured paid his money and presented a risk that they were willing to take, and of the time that it would have taken effect if they had responded without a delay of two weeks. Had it been otherwise we cannot conceive how the sagacious business men who control this company would have assented to the delivery of the policy without inquiry as to the intermediate time. More than three months elapsed before Day's death, monthly returns being made by the agent, and the company must have known and assented to the delivery of the renewal receipt not only, but to the fact that there had been no inquiry or information as to Day's health after Oct. 1st. The jury might account for it on the theory that the whole contract was intended to be and was as of October 1st, and that it spoke from that date.

There is every indication that Day thus relied upon that contract, nor is there any reason to believe that he intended to deceive or to conceal. The company made inquiries to its own satisfaction, so far, in such direction, upon such points, and within such periods, as it thought proper. It was not for him to advise the company of what it should do, or to volunteer information which it did not seek. He paid his money, delivered his certificate, received the renewal when the company chose to give it, found upon examination that it covered the whole period from the July proceeding. He lived in the same town with the agent and received no suggestion from him that any thing further was expected, and was warranted in assuming that his contract was intended to take effect from an earlier period than its actual delivery. He probably died in the honest belief that he had thus provided for his widow. It would be far from good faith to his representatives should it now be held otherwise.

In Colt v. Phoenix Fire Ins. Co., 54 N. Y. 597, it is said: "The defendant must not be made liable where by the terms of the contract it is fairly exempted, however harsh the result may appear; nor can it be excused where the exemption is claimed upon a strict and rigid interpretation of words without regard to the circumstances surrounding the transaction, and the apparent intent of the parties." See, also, Tipton v. Fertner, 20 N. Y. 423.

In May on Ins., § 190, it is laid down: "Where renewals are made upon the statements in the original application, whether the truth of the statements is to be tried by the circumstances existing at the time of the renewal or at the time when the original application was made, is a question upon which the authorities do not agree, some taking the view that a renewal makes a new contract, and others that it merely continues the old one. Special circumstances, however, seem to control the decision, according as the circumstances indicate the intent of the parties."