*292Dissenting opinion.
Murray, A. R. J.Dissenting. We agree with the majority opinion that the facts show that the plaintiff was discharged for gross misconduct as described in Section 2 of the contract. We also agree with this part of the opinion: “Nor is there any controversy relative to the fact that plaintiff’s employment by the defendant terminated on May 27, 1952, that he had completed more than twenty years’ service at that time and was a member of said Newspaper Guild at that time.”
While the opinion states that we are to decide whether or not the plaintiff was dismissed under Section 2, or terminated his employment within the meaning of Section 4, we contend that the employment was terminated not by plaintiff but by the defendant, which dismissal by the defendant made it impossible for the plaintiff to terminate the employment by resigning.
We also agree with the statement in the opinion, “the right to severance pay, although enforceable, is but a contingent right which does not become absolute unless the terms of the contract making provision therefor are complied with.” We do not agree with its further statement, “It is never due and payable until the termination of the contract of employment ***.” We agree to this as to Section 2, but not as to Section 4. We say it is due under Section 2 upon dismissal, but it is due under Section 4 on completion of twenty years’ service, it is payable on resignation. The majority opinion states that Article VII of the contract must be interpreted as a whole. With this, of course, we differ, but do say that the contract as a whole should be interpreted, including Section 2 and Section 4, to get the intention of the parties thereto.
*293Section 2 and Section 4, Article VII follow:
“2. Upon dismissal, other than for gross neglect of duty, or gross misconduct while on duty, not provoked by management, an employe shall receive a cash severance payment equal to his salary for one week, at the highest rate received during his employment, for each six months or major fraction thereof that he has been employed by the publisher. In no event shall this exceed thirty (30) weeks.
4. Upon completion of 20 years’ service or because of illness or having reached the age of 65, an employe may terminate his employment and upon written application to the publisher, shall receive a cash lump sum based on length of service as computed under Section 2 of the article. Payments under this section shall be in lieu of any other terminal benefits provided for elsewhere.”
The construction, according to the majority opinion, is that Section 2 is in effect from the time of the commencement of the employment until there is a dismissal or a resignation, the construction of the dissenting opinions is Section 2 is in effect until there has been a completion of twenty years’ service. At the completion of twenty years’ service Section 2 has expired, and the right to resign and the right to severance pay vests. We are strengthened in our belief that Section 2 expired by the statement in Section 4: “Payments under this section shall be in lieu of any other terminal benefits provided for elsewhere.”
The contract discloses that it was made by the defendant and the Portland Newspaper Guild for itself and on behalf of all employes of the publisher. As between this plaintiff and this defendant, the defendant drew the contract.
What was the intention of the parties to this contract? “The first maxim of construction, and that upon which rests *294all the rules, is this, namely, that, so far as the law will permit, the apparent intent of the contracting parties shall be regarded. Operation and intent are to be ascertained from the purpose of the parties; their meaning and understanding as shown by the language they use, applied to the subject matter.” Katz et al. v. New England Fuel Oil Co., 135 Me. 452. Intention should be gathered from the whole instrument. Monk v. Morton, 139 Me. 291.
“Retirement pay is defined as ‘adjusted compensation,’ presently earned *** payable in the future. The compensation is earned in the present, payable in the future. *** until the time arrives when he may retire, his retirement pay is but an inchoate right; but when the conditions are satisfied, at that time retirement pay becomes a vested right of which the persons entitled thereto cannot be deprived; it has ripened into a full obligation.” Retirement Board of Allegheny County v. McGovern, (Penn.), 174 Atl. 400, 404, (underscoring ours), citing Lynch v. U. S., 292 U. S. 571, 54 S. Ct. 840.
In Division of Labor Law Enforcement v. Ryan Aeronautical Co., 236 Pac. (2nd) 236 (Cal.), a case for the collection of vacation pay in which the plaintiff had not complied with a required one year service, the contention of the defendant was, the clause was a condition precedent to the right of recovery. The court held it was ambiguous and not necessarily a condition precedent. The clause was inserted to accomplish continuous and faithful service and to induce the employee to remain in the employment. That the objects have been substantially procured, the benefit inured to the employer. Equity and justice require a liberal construction. That courts are disinclined to construe the stipulations or the contract as a condition precedent, unless compelled by the words of the contract plainly expressed, and particular*295ly so when result would work a forfeiture. This case also decides that provision for vacation pay is not a gratuity or gift but a contract for additional wages.
“An employee fulfilling these conditions then has a vested interest in retirement pay which cannot be destroyed, weakened, or departed from by subsequent legislation. Neither dismissal from service or office, nor any involuntary removal, can affect this vested right to retirement pay. We endeavored to specifically hold in the McGovern case that eligibility for retirement pay is complete as soon as an employee or member of the retirement system has satisfied the conditions requisite for retirement, whether the employee chooses to retire immediately or to continue in active service. His rights to such pay are fixed as of the time he attained eligibility. Until retirement pay is earned as above described the right is inchoate. During this period retirement pay is being built up. The inchoate right becomes a complete vested right when the conditions connected with the particular retirement system are complied with. This right cannot be thereafter disturbed by legislation.” McBride v. Retirement Board (Penn.), 199 Atl. 130, 132.
We say there is no ambiguity, but if there is ambiguity, following is the law: “The rule that an ambiguous contract will be construed more strongly against him who uses the words concerning which doubt arises, is more than an arbitrary rule. Its purpose is to give effect to the intention of the parties. To the maker of an instrument is available language with which to adequately set forth the terms thereof. It is presumed that he will not leave undeclared that which he would claim as his right under the agreement. *** ‘He who speaks should speak plainly, or the other party may explain to his own advantage.’ ” Monk v. Morton, supra.
“The Restatement of Contract, Sec. 261 provides where it is doubtful whether words create a promise or an express condition, they are interpreted as creating a promise *** *296and Professor Williston in his work on contracts Section 665 says thereof: ‘Such an interpretation protects both parties to the transaction and does not involve the consequences that a slight failure to perform wholly discharges all right under the contract.’ ” Division of Labor Law Enforcement v. Ryan Aeronautical Co., 236 Pac. (2nd) (Cal.).
It must be borne in mind that this defendant, not the plaintiff, made this contract, and for that reason it should be construed strongly against the defendant. The construction which the majority opinion gives to the contract is strongly in favor of the defendant.
Unless Section 4 is construed a promise to pay on completion of twenty years’ service, an employee could work more than twenty years, then the defendant might be adjudged a bankrupt before employee resigned, the bankruptcy is neither a dismissal nor a resignation. After the twenty years’ service and before the resignation, the contract might not be renewed, employee could collect nothing because he had not resigned while the contract was in effect. The opinion states that severance pay is never due and payable until the termination of employment, and then only if the contract be terminated under such conditions that it is payable according to the terms thereof.
The majority opinion has not construed this contract, it has written a new one. It has made resigning a mountain and the completion of twenty years’ service a mole hill. It has written the contract so strongly against the plaintiff that it has succeeded in bringing about a forfeiture of this man’s twenty years’ service, and given the remuneration for it, not to the State but to this defendant. We think judgment should be for the plaintiff.