dissenting:
I dissent because in my opinion (1) the Chancellor’s construction of the licensing agreement of July 5, 1960, was correct, and (2) the defense of estoppel, although sound as an abstract principle, is not applicable and, in any event, is not available in this case because it was not raised in the lower court and was not briefed by the appellant in this appeal.
1.
The Chancellor, in my opinion, correctly construed the licensing agreement of July 5, 1960, as an agreement by Philadelphia Snelling to grant to Baltimore Snelling the exclusive right to use the name Snelling & Snelling in Baltimore City. This exclusive right was to be used in connection with one office only which was to be opened by Baltimore Snelling in Baltimore City. As I read paragraph 1 (a) this is what the licensing agreement states. This is confirmed, in my opinion, by the provisions of paragraph 9 of the licensing agreement whereby Baltimore Snelling agreed when requested by Philadelphia Snelling to waive objections which Baltimore Snelling might legally have against the use of the name “Snelling and Snelling” in territories other than the territory granted to Baltimore Snelling.
It is well established that the primary source for determining the intention of the parties to a contract is the language used by the parties. Kelley Construction Co. v. Washington Sub6urban Sanitary District, 247 Md. 241, 230 A. 2d 672 (1967); Cadem v. Nanna, 243 Md. 536, 221 A. 2d 703 (1966). The words of the contract are to be understood in their plain, ordinary and popular sense, unless they have acquired a peculiar sense by trade usage or for some other cause. Highley v. Phillips, 176 Md. 463, 5 A. 2d 824 (1939). It is only when the words of the contract, used in their ordinary sense, are vague, doubtful or ambiguous, that extrinsic evidence is admissible to determine the intention of the parties. Coopersmith v. Isherwood, 219 Md. 455, 150 A. 2d 243 (1959). As pointed out in the majority opinion, the Pennsylvania law is to the same effect.
The Chancellor concluded that Baltimore Snelling acquired the legal right, by the terms of the licensing agreement, to the *237exclusive use of the name “Snelling and Snelling” in Baltimore-City in connection with its office located in that area, that the operation of Mascaro, by soliciting and advertising, could not be effectively confined within his Dundalk-Essex franchise area, without invading some sections of Baltimore City, and that this operation violated Baltimore Snelling’s exclusive right to use-the name “Snelling and Snelling” in its franchise area. In my opinion the Chancellor’s conclusion was correct and carries into-effect the intention of the parties to the licensing agreement as disclosed by the words of the contract itself. The purpose of the-exclusive grant was to protect the franchisee from competition within the franchise area and this was a lawful provision.
The majority indicates that the exclusive right to use file-name in Baltimore City in connection with one office in that City “is not an unrestricted right” and that “Philadelphia Snelling retained a right and could assign to others the right to use the name in Baltimore in ways not connected with the Baltimore office. To hold otherwise would give rise to the conclusion that Baltimore Snelling might, if it wished, prevent Philadelphia Snelling from advertising in magazines which circulated in Baltimore.” It was further stated “This was clearly not intended by any one.” With great respect, this appears to me to-beg the question. The language of the contract gives an unrestricted right against those who can compete with Baltimore Snelling, not against national advertising generally or advertising by franchisees who geographically cannot compete with Baltimore Snelling as a practical matter. There is no contention that Philadelphia Snelling could grant another franchise for another office to someone other than Baltimore Snelling in Baltimore City. It seems clear that Baltimore Snelling then has the exclusive right to use the Snelling name in Baltimore City in connection with that one office and no one else can be granted any right to use the name in Baltimore City in competition with Baltimore Snelling. The conclusion of paragraph 1 (a) provides:.
“Licensee (Baltimore Snelling) shall not directly or indirectly establish an office or place of business, or move to any locations outside of such territory; nor shall licensee [Baltimore Snelling] change its name without obtaining the written consent of Snelling *238[Philadelphia Snelling]; nor shall licensee [Baltimore Snelling] establish any branch or additional office without the written consent of Snelling [Philadelphia Snelling].”
'This provision indicates that there are two prohibitions on the activities of Baltimore Snelling, (1) that only one office will be maintained that one in its territory, and (2) that there will be no change in its name. Paragraph 9 provides for waiver by Baltimore Snelling in territories other than the territory granted 'to Baltimore Snelling. This language clearly indicates that the territory granted to Baltimore Snelling is Baltimore City (it is the only territory mentioned in paragraph 1) and there is no •provision that there will be any waiver of objection to the use •of the name “Snelling and Snelling” in that territory. This language confirms the exclusive nature of the grant to Baltimore •Snelling.
Assuming, arguendo, that the licensing agreement is ambiguous, the extrinsic evidence, in my opinion, confirms the ‘Chancellor’s construction of the contract. When the licensing -agreement was negotiated, the prior franchisees in the Baltimore area had failed badly in their operation, leaving a collection of unpaid bills and ill will behind them. The name “Snelling and Snelling” was at that point a liability rather than an :asset. In short, the situation gave rise to a franchisee’s “market,” •as it were, and Philadelphia Snelling was obliged to give Baltimore Snelling a licensing agreement most beneficial to the franchisee and at a small license payment in order to obtain a •competent and qualified operator who would enter the unfortunate situation in Baltimore.
In addition to the specific situation in the Baltimore area, Philadelphia Snelling in 1960 had not enlarged its licensing op•erations to the substantial size it enjoys at the present time. Here again it was necessary to give favorable licensing agreements to its franchisees in order to build up its business at that time. It is significant that after the situation in Baltimore was rectified and Philadelphia Snelling’s business had substantially ■expanded, a different form of contract from which the word “exclusive” was removed was used by Philadelphia Snelling, and *239more substantial original license payments were required. It seems clear that Philadelphia Snelling believed that there was a substantial legal difference between a licensing agreement containing the word “exclusive” and one from which that word was excluded. It is unreasonable to suppose that Baltimore Snelling would have proceeded to make the very substantial payments for advertising and other promotional items 1 if it had not believed that it had the exclusive right for which it had successfully bargained.
Then too, the licensing agreement of July 5, 1960, was prepared by Philadelphia Snelling. It is well settled that in the event of ambiguity in the contract, it is to be construed against the party preparing it. Hughes & Co. v. Pioneer, 230 Md. 36, 185 A. 2d 383 (1962). Applying this maxim of construction to the licensing agreement, the ambiguity would be resolved against Philadelphia Snelling and the Chancellor’s construction sustained.
2.
In the majority opinion, as an alternative ground for reversing the Chancellor’s decree, it is indicated that Baltimore Snelling is equitably estopped from challenging the validity of the licensing system which Drossner “used to his own advantage when he obtained the Towson and Glen Burnie franchises and from attempting to impose upon Mascaro limitations with respect to communications media he did not assert against Tow-son and Glen Burnie.” Although the basic principle of estoppel is sound in a proper case, in my opinion, it is not applicable in the present case, as Drossner was Mmself one of the principals in the Towson and Glen Burnie franchises. The granting of these franchises was not injurious to the exclusive franchise granted to Baltimore Snelling inasmuch as a substantial part of the profits of their operation accrued to the principal in Baltimore Snelling. The obtention of the Glen Burnie and Towson franchises might possibly establish an equitable estoppel, prima facie, against Drossner in his contention that Baltimore Snelling’s franchise included areas outside of Baltimore City, but it *240would not, in my opinion, operate as an estoppel to insist on the exclusive franchise as against Mascaro, a competitor. More importantly, it would seem that merely because Drossner permitted one person to infringe his exclusive franchise, he would not be prevented from enforcing that franchise against another infringement by a different person.
Assuming for the argument that the estoppel would otherwise be effective against Drossner, in my opinion the estoppel is not available to Mascaro in this case because it was not raised, considered or passed upon by the Chancellor in the trial court and was not briefed or argued before us on this appeal.
It is indicated in the majority opinion that Mascaro in his answer to the bill of complaint asserted the defense that the plaintiff was guilty of “unclean hands” and the inference is that this affirmative defense sufficiently raised the question of estoppel. In my opinion, the raising of this affirmative defense does not raise the question of estoppel against Drossner by his acquisition as one of the principals of the Towson and Glen Burnie franchises. Paragraph 20 of the Mascaro answer alleges:
“20. Further answering, Complainant is guilty of unclean hands in that the Bill of Complaint, which prayed under oath an ex parte injunction which was successfully obtained and then dissolved on motion of Defendant, fails to make a full and frank disclosure of all the facts, to wit, that both Complainant and Defendant are licensees of Snelling and Snelling, Inc., owners of the registered trade name “Snelling and Snelling” by virtue of contracts dated July 5th, 1960, and November 4th, 1965, respectively.”
There is nothing alleged in paragraph 20 to suggest any estoppel of Drossner by having acquired, as one of the principals, the Towson and Glen Burnie franchises. The reference in paragraph 20 is to licenses acquired under the licensing agreements of Baltimore Snelling and Mascaro, dated July 5, 1960 and November 4, 1965 respectively. The Chancellor does not mention or pass upon any estoppel point in his written opinion and there is nothing concerning it in the final decree. The point is not mentioned in the briefs of the respective parties and the cases cited *241on this point by the majority are not cited. There was no argument before us on the point.
Under these circumstances the point is not available to Mascaro as a ground for reversal in this case. Maryland Rule 885 provides that this Court “will not ordinarily decide any point or question which does not plainly appear by the record to have been decided by the lower court.” In my opinion, the point was not presented to the lower court and I see no reason to decide the point here. See Elko v. Elko, 187 Md. 161, 49 A. 2d 441, 168 A. L. R. 256(1946).
Then too, we have rather consistently held that even if a point were raised and decided by the lower court, it will be deemed to be waived on appeal if the point is not briefed in this Court. Harmon v. State Roads Commission, 242 Md. 24, 217 A. 2d 513 (1966); Myers v. Chief of Baltimore County Fire Bureau, 237 Md. 583, 207 A. 2d 467 (1965). For this additional reason, the estoppel point is not available to Mascaro in this case as a ground for the reversal of the Chancellor’s decree.
I would affirm the decree.
. The testimony indicates that amounts up to $] 18,000.00 per year were spent on these items.