Frank Holt, Justice.

The appellant and appellee are subcontractors who entered into an agreement involving the installation of sewer lines. Paragraph 7 of the agreement between these parties provided:

It is further agreed that the 2nd subco tractor will *622receive $20,000 for supervision which will be added to the actual cost figure. It is further agreed that the difference between actual cost and bid price will be divided as follows: 33 1/3% to 2nd contractor; 66 2/3% to 1st subcontractor.

Appellee was paid $517,451.11 and appellee brought suit for an alleged payment deficit of $55,243.20 on the contract. The trial court, sitting as a jury, after hearing parol evidence, awarded appellee judgment for $40,349.11. Appellant questions only that part of the judgment which awarded $18,-600 (in addition to $20,000 for supervision) for the salary and living expenses of appellee’s president and sole stockholder during the time he was personally engaged in the supervision of the construction. Appellant contends that the extra award of $18,600 is double recovery in that it is contrary to the terms of the contract which designates a specific sum of $20,000 for supervision.

When contracting parties express their intention in a written instrument in clear and unambiguous language, it is our duty to construe the written agreement according to the plain meaning of the language employed. Miller v. Dyer, 243 Ark. 981, 423 S.W. 2d 275 (1968). However, where the meaning of a written contract is ambiguous, parol evidence is admissible to explain the writing, Brown and Hackney v. Daubs, 139 Ark. 53, 213 S.W. 4 (1919). Ambiguities are both patent and latent. When, on its face, the reader can tell that something must be added to the written contract to determine the parties’ intent, the ambiguity is patent; a latent ambiguity arises from undisclosed facts or uncertainty of the written instrument. Dorr v. School District No. 26 &c, 40 Ark. 237 (1882); Johnson v. Mo. Pac. R. R. Co., 139 Ark. 507, 214 S.W. 17 (1919); and Taylor v. Union Sawmill Co., 105 Ark. 518, 152 S.W. 150 (1912). However, the initial determination of the existence of an ambiguity rests with the court and if ambiguity exists, then parol evidence is admissible and the meaning of the term becomes a question for the factfinder. Fort Smith Appliance and Service Co. v. Smith, 218 Ark. 411, 236 S.W. 2d 583 (1951); Brown and Hackney v. Daubs, supra; and Easton v. Washington County Insurance Co., 391 Pa. 28, 137 A. 2d 332 (1957), cited in 4 Williston on Contracts, § 627 (3d. Ed. 1961). For example, in Taylor v. Union Sawmill Co., supra, our court made an initial determination of the ambiguous nature of the term “white oak” before justifying the introduction of testimony of custom and usage in order to determine the sense in which the term was employed.

*623In the case at bar, we cannot strain the plain, obvious, and unambiguous language of the contract. Appellee agreed to a definite amount for supervision. Had appellee’s president and sole owner of the corporation desired that the sum of $20,000 represent a guaranteed profit, as he and his witnesses so understood from their verbal agreement during negotiations, the wording of the contract should have so indicated. Had appellee’s president and owner intended, as he now contends was their verbal understanding, that his salary should be in addition to the $20,000 for supervision, the written contract could easily have so reflected. The lower court’s award for salary ($15,500) is contrary to the plain and unambiguous terms of their written agreement and the judgment should be adjusted accordingly".

In Hoffman v. Late, 222 Ark. 395, 260 S.W. 2d 446 (1953), we said:

It is the accepted present-day view that the parol evidence rule is not really a rule of evidence but is instead a rule of substantive law. Wigmore on Evidence (3d. Ed.), § 2400; Williston on Contracts (Rev. Ed.), § 631; Rest., Contracts, § 237; 4 Ark. L. Rev. 168. As Wigmore puts it, supra: ‘What the rule does is to declare that certain kinds of facts are legally ineffective in the substantive law; and this of course (like any other ruling of substantive law) results in forbidding the fact to be proved at all.’ The practical justification for the rule lies in the stability that it gives to written contracts; for otherwise either party might avoid his obligation by testifying that a contemporaneous oral agreement released him from the duties that he had simultaneously assumed in writing.

Hence in the case at bar it makes no difference whether Late’s version of the oral negotiations is true or false. . . .

Likewise, in the case at bar, even though the verbal evidence and tentative drafts attending the negotiations be true, it cannot alter the terms of the clearly unambiguous written agreement as to his compensation for supervisory services. The contracting parties were knowledgeable and certainly capable of reducing their negotiations to unambiguous written terms. In such situations, we cannot interfere.

The court found that appellee was entitled to $3,100 for its owner’s expenses during the time he actually was “on the job.” The contract clearly provides for recovery of actual *624costs. In the circumstances, the court was justified in this award.

We deem it unnecessary to discuss appellant’s other contentions.

The judgment is modified to exclude the salary allowance.

Affirmed as modified.

Fogleman and Brown, JJ., dissent.

John A. Fogleman, Justice,

dissenting. The majority opinion is apparently based upon the premise that the existence of ambiguity must be determined by the court upon the basis of an examination of the contract. This is the case in determining whether there is a patent ambiguity. It is not in the case of a latent ambiguity. By definition, a latent ambiguity is one which does not appear upon the face of the instrument and cannot be detected by examination of the document. It arises from facts not disclosed in the instrument. Dorr v. School District No. 26, 40 Ark. 237. Latent ambiguity is defined at 3A C.J.S. P. 409, Ambiguity, as follows:

The term has been said to imply either, on the one hand, a concealment of the real meaning or intention of the writer which does not appear on the lace of the words used, until these words are brought in contact with collateral facts or until the facts are shown, or, on the other hand, a clear expression of the party’s intention, and the existence of a doubt not as to the intention, but as to the object to which the intention applies.

The term “latent ambiguity” is defined to mean an ambiguity which arises not upon the words of the instrument, as looked at in themselves, but upon those words when applied to the object or subject which they describe. It is one which does not appear on the face of the language used or the instrument being considered, or when the words apply equally to two or more different subjects or things, as where the language employed is clear and intelligible and suggests but a single meaning, but some extrinsic fact or evidence aliunde, creates a necessity for interpretation or a choice among two or more possible meanings.

*625It has been said that a latent ambiguity occurs where a writing appears on its face clear and unambiguous, but which, in fact, is shown by extrinsic evidence to be uncertain in meaning, or where a description, apparently plain and unambiguous, is shown to fit different pieces of property.

In order for the court to determine whether a latent ambiguity exists, it is obviously necessary that it consider evidence of extraneous and collateral facts as to extrinsic circumstances. Logan v. Wiley, 357 Pa. 547, 55 A. 2d 366 (1947). It is a well settled rule that extrinsic evidence is admissible to show that a latent ambiguity exists. Hall v. Equitable Life Assurance Society, 295 Mich. 404, 295 N.W. 204; McCarty v. Mercury Metalcraft Company, 372 Mich. 567, 129 N.W. 2d 854 (1964); Widney v. Hess, 242 Iowa 342, 45 N.W. 2d 233 (1951). See Ellege v. Henderson, 142 Ark. 421, 218 S.W. 831; Easton v. Washington County Insurance Co., 391 Pa. 28, 137 A. 2d 332. In treating the matter as it relates to the parol evidence rule, the author of Jones on Evidence (Vol. 3, p. 134, § 16:23) says:

In a preceding section it has been pointed out that where a written instrument appears to be complete on its face, a presumption will be indulged that the parties have included all of the terms of their agreement in the instrument.

While for all practical purposes, if such a presumption is indulged, it will have a conclusive effect to prevent bringing in additional terms, it does not have the effect of barring disclosure of hidden uncertainties, and to this extent the presumption is rebuttable and parol evidence admissible not only to bring out the latent ambiguity but to explain the true intent of the parties and to resolve the uncertainty, if it can be resolved, in order to save the contract.

To discover a latent ambiguity, it is proper to go outside the instrument to ascertain whether the words used aptly fit the facts existing when the instrument was executed and the words used. Widney v. Hess, supra; Queens Insurance Company of America v. Meyer Milling Co., 43 F. 2d 885 (8th Cir. 1930).

It is generally held that the question whether an ambiguity exists is one of law for the court. Steele v. McCargo, 260 F. 2d 753 (8th Cir. 1958); Easton v. Washington County Insurance *626Co., supra. In determining whether an ambiguity exists, a contract must be read in the light of what the parties intended as gathered from the language thereof in view of all surrounding circumstances. Arkansas Amusement Co. v. Kempner, 57 F. 2d 466 (8th Cir. 1932). See Ellege v. Henderson, supra; 17A C.J.S. 37, Contracts, § 294b(3) P. 37. The words of a contract, which are not ambiguous in the abstract, may, when considered in relation to the circumstances surrounding the making of it, create an ambiguity requiring interpretation. Arkansas Amusement Co. v. Kempner, supra; Paepcke-Leicht Lbr. Co. v. Talley, 106 Ark. 400, 153 S.W. 833. See Ellege v. Henderson, supra; Easton v. Washington County Insurance Co., supra. In making the determination, courts may acquaint themselves with the persons and circumstances that are the subjects of the statements in the written agreement and place themselves in the position of the parties who made the contract, so as to view the circumstances as they did. Wood v. Kelsey, 90 Ark. 272, 119 S.W. 258.

There is another facet of the problem of admissibility of parol testimony to explain a contract very closely related to the question whether a latent ambiguity exists. Our cases clearly recognize that parol evidence is admissible to explain the meaning of the terms or words used when they have a technical meaning or, by custom and usage are used in a sense other than in an' ordinary meaning of the words. Paepcke-Leicht Lbr. Co. v. Talley, supra; Wilkes v. Stacy, 113 Ark. 556, 169 S.W. 796. In the case last cited, we quoted from Lawson on Contracts, Second Edition, 5 390, p. 450, as follows:

The customs of particular classes of men soon give to particular words different meanings from those which they may have among other classes, or in the community generally. Mercantile contracts are commonly framed in a language peculiar to merchants, and hardly understood outside their world. Agreements which are entered into every day in the year between members of different trades and professions are expressed in technical and uncommon terms. The intentions of the parties, though perfectly well known to themselves, would be defeated were the language employed to be strictly construed according to its ordinary meaning in the world at large. Hence, while words in a contract relating to the ordinary transactions of life are to be construed according to their plain, ordinary and popular. *627meaning, yet if, in reference to the subject-matter of the contract, particular words and expressions have by usage acquired a meaning different from their plain, ordinary and popular meaning, the parties using those words in such a contract must be taken to have used them in their peculiar sense. And so words, technical or ambiguous on their face, or foreign or peculiar to the sciences or the arts, or to particular trades, professions, occupations, or localities, may be explained, where they are employed in written instruments, by parol evidence of usage.

Obviously, the trial court found that an ambiguity existed. The pertinent contract terms hang upon the meaning of the words “supervision” and “actual cost.” The real issue is whether the salary and expenses of Benning while he was acting as superintendent of the Crossett job are a part of the “actual costs” as distinguished from the allowance of $20,000 for “supervision.” Benning testified that the charge in question covered only the time he spent on the North Crossett job, and that appellee employed no superintendent on the job, although there were four working foremen. It is significant that appellant thought that evidence of the original negotiations was admissible, because its attorney introduced evidence thereof by cross-examination of Benning over appellee’s attorney’s objection that it should be considered for impeachment only.

There was evidence that the following circumstances existed at the time the contract being construed was entered into:

Sutton Construction Company had failed. A representative of appellant had prepared a contract relating to unfinished sewer jobs at Hope and McGehee. Benning agreed with the two persons then representing appellant that he would not charge any of his time to these two jobs, but that it would be charged for the North Crossett job, which apparently had not been commenced by Sutton. Benning told the interested parties how much salary he was drawing ($300 per week) and that he was drawing $50 per week as expenses, which he said was to be charged to the Hope and McGehee jobs. According to Benning, it was agreed that he was to get a guaranteed profit of $20,000 on the *628North Crossett job and one-third of any profit, and his salary to be charged to the job was not included in the $20,000 figure. The first estimate made by appellee included two $20,000 items, one for profit and the other for supervision. On most construction jobs the size of the North Crossett job there is a construction superintendent. The original contract required that a construction superintendent or foreman who had full authority to act for the contractor be employed at the site.

Carrie New testified that he was familiar with the custom in the construction business as to whether the managing executive of a company is entitled to charge his salary to the job in addition to a fixed fee for supervision. He stated that the practice is that when the contract is let on a cost-plus fixed fee basis, the fee is over and above all job costs, which include office overhead, executives’ salaries, general contractor’s labor, material and all subcontract costs. Normally, he said, a corporation would have an office staff and executive officers, and the duties of the latter may vary in that they double as superintendents, estimators, expeditors and purchasers. In a small organization, he said that one man may act as all these. He was present when the final draft of the contract was made and did not understand that the $20,000 figure therein was to be for Benning's salary and expenses, but did understand that was a fee to be paid over and above any profit or whether any profit was realized or not. John W. Cole, Jr., appellee’s attorney at the drafting, was not familiar with usage in the construction field, but had the same understanding as New as to the $20,000. He recalled that there was discussion directed at the amount of Benning’s personal salary and stated that it was agreed that the $20,000 payment would not be a substitute for it. A portion of the stated contract form of the American Institute of Architects for use when cost of work plus a fixed fee forms the basis of payment was introduced as an exhibit. It contained a clause under the heading of “Costs to be Reimbursed” providing for payment of salaries of the contractor’s employees stationed at the field office in whatever capacity employed.

The contract in question was not abstracted but the paragraph in question is stated thus:

It is further agreed that 2nd Subcontractor will receive *629S20.000.00 for supervision which will be added to actual cost, figure. It is further agreed that the difference between actual cost and bid price will be divided as follows: 33-1/3% to 2nd Subcontractor; 66-2/3% to 1st Subcontractor. (Plaintiff's Exhibit No. 2)

It must be noted that the payment of this 120,000 was to be made to appellee, a corporation, and not to Benning. Appellant’s attorney emphasizes the fact that this language constituted a change of the same paragraph in the next preceding draft in that it was therein provided that “the 2nd Subcontractor will, nevertheless, receive the sum of S20.000 for his supervisory services.”

I do not see how we can say the court erred in holding that the contract was ambiguous in view of the surrounding circumstances and collateral facts. If it was ambiguous, then we only have to determine whether there is any substantial evidence to support the judgment, since the judge also sat as the jury, and the question was for the jury. Ft. Smith Appliance & Service Co. v. Smith, 218 Ark. 411, 236 S.W. 2d 583; Bailey v. Sutton, 208 Ark. 184, 185 S.W. 2d 276; Paepcke-Leicht Lbr. Co. v. Talley, 106 Ark. 400, 153 S.W. 833.

Once it was shown that there was a latent ambiguity or that the words used by the parties were commonly accorded a meaning different from their ordinary meaning, oral evidence was admissible to explain them. Ft. Smith Appliance & Service Co. v. Smith, supra; Paepcke-Leicht Lbr. Co. v. Talley, supra; Ellege v. Henderson, 142 Ark. 421, 218 S.W. 831. Evidence of the way in which a particular term is understood commercially, or in a particular trade or business is admissible, as is evidence of custom and usage, including local popular and ?eneral use. Paepcke-Leicht Lbr. Co. v. Talley, supra; Taylor v. Union Sawmill Co., 105 Ark. 518, 152 S.W. 150; McCarthy v. McArthur, 69 Ark. 313, 63 S.W. 56; Jackson County Gin Co. v. McQuistion, 177 Ark. 60, 5 S.W. 2d 729; Davis v. Martin Slave Co., 113 Ark. 325, 168 S.W. 553. Testimony of the parties as to the meaning of the tehns is also admissible. Ellege v. Henderson, supra. Parol evidence is also competent to explain the situation and relation of the parties and the surrounding circumstances at the time of the execution of the contract. Clear Creek Oil & Gas Co. v. Bushmaier, 165 Ark. 303, 264 S.W. 830.

The matter is treated in the Uniform Commercial Code. *630See Ark. Stat. Ann. § 85-1-205 (Add. 1961). A usage of trade in the vocation or trade in which the parties are engaged or of which they should be aware gives particular meaning to and supplements or qualifies terms of an agreement. Ark. Stat. Ann. § 85-1-205(4). An applicable usage of trade in the place where any part of performance is to occur shall be taken into consideration as to that part of performance is to occur shall be taken into consideration as to that part of performance. A usage of trade is any practice or method of dealing having such regularity of observance in a place, vocation or trade as to justify an expectation that it will be observed with respect to the transaction in question. Ark. Stat. Ann. § 85-1-205(2), (5). The committee comments are particularly enlightening. In part, they are:

This Act rejects both the “lay-dictionary” and the “conveyancer’s” reading of a commercial agreement. Instead the meaning of the agreement of the parties is to be. determined by the language used by them and by their action, read and interpreted in the light of commercial practices and other surrounding circumstances. The measure and background for interpretation are set by the commercial context, which may explain and supplement even the language of a formal or final writing.

* * *

This Act deals with “usage of trade” as a factor in reaching the commercial meaning of the agreement which the parties have made. The language used is to be interpreted as meaning what it may fairly be expected to mean to parties involved in the particular commercial transaction in a given locality or in a given vocation or trade. By adopting in this context the term “usage of trade” this Act expresses its intent to reject those cases which see evidence of “custom” as representing an effort to displace or negate “established rules of law.”

* * *

A usage of trade under subsection (2) must have the “regularity of observance" specified. The ancient English tests for “custom” are abandoned in this connection. Therefore, it is not required that a usage of trade be “ancient or immemorial,” “universal” or the *631like. Under the requirement of subsection (2) full recognition is thus available for new usages and for usages currently observed by the great majority of decent dealers, even though dissidents ready to cut corners do not agree.

See also, 17 Am. Jur. 2d 643, Contracts, § 251.

In addition to the evidence set out ahove, there was other substantial evidence in appellee’s favor. Benning testified he spent 95% of his time on the North Crossett sewer job. Carrie New said that Benning acted as construction superintendent on the North Crossett job and that he knew of no other person employed in that capacity.

It is true that there is also evidence from which a contrary result might have been reached, but this does not affect the substantiality of the evidence to support the conclusion reached by the court sitting as a jury. I would affirm the judgment.

I am authorized to state that Mr. Justice Brown joins in this dissent.

Opinion by

Hirt, J.,

Plaintiff is an ordained rabbi of the orthodox Hebrew faith. He however does not officiate except on *361occasion as a professional rabbi-cantor in the liturgical service of a synagogue. The defendant is an incorporated Hebrew congregation with a synagogue in Philadelphia. Plaintiff, in response to defendant’s advertisement in a Yiddish newspaper, appeared in Philadelphia for an audition before a committee representing the congregation. As a result, a written contract was entered into on June 26, 1950, under the terms of which plaintiff agreed to officiate as cantor at the synagogue of the defendant congregation “for the High Holiday Season of 1950”, at six specified services during the month of September 1950. As full compensation for the above services the defendant agreed to pay plaintiff the sum of $1,200.

The purpose upon which the defendant congregation was incorporated is thus stated in its charter: “The worship of Almighty God according to the faith, discipline, forms and rites of the orthodox Jewish religion.” And up to the time of the execution of the contract the defendant congregation conducted its religious services in accordance with the practices of the orthodox Hebrew faith. On behalf of the plaintiff there is evidence that under the law of the Torah and other binding authority of the Jewish law, men and women may not sit together at services in the synagogue. In the orthodox synagogue, where the practice is observed, the women sit apart from the men in a gallery, or they are separated from the men by means of a partition between the two groups. The contract in this case is entirely silent as to the character of the defendant as an orthodox Hebrew congregation and the practices observed by it as to the seating at the services in the synagogue. At a general meeting of the congregation on July 12, 1950, on the eve of moving into a new synagogue, the practice of separate seating by the defendant formerly observed was modified and *362for the future the first four rows of seats during religious services were set aside exclusively for the men, and the next four rows for the women, and the remainder for mixed seating of both men and women. When plaintiff was informed of the action of the defendant congregation in deviating from the traditional practice as to separate seating, he through his attorney notified the defendant that he, a rabbi of the orthodox faith, would be unable to officiate as cantor because “this would be a violation of his beliefs.” Plaintiff persisted in the stand taken that he would not under any circumstances serve as cantor for defendant as long as men and women were not seated separately. And when defendant failed to rescind its action permitting men and women to sit together during services, plaintiff refused to officiate. It then was too late for him to secure other employment as cantor during the 1950 Holiday season except for one service which paid him $100, and he brought suit for the balance of the contract price.

The action was tried before the late Judge Fenerty, without a jury, who died before deciding the issue. By agreement the case was disposed of by the late President Judge Frank Smith “on the notes of testimony taken before Judge Fenerty.” At the conclusion of the trial, counsel had stipulated that the judge need not make specific findings of fact in his decision. This waiver applied to the disposition of the case by Judge Smith. Nevertheless Judge Smith did specifically find that defendant, at the time the contract was entered into, “Was conducting its services according to the Orthodox Hebrew Faith.” Judge Smith accepted the testimony of three rabbis learned in Hebrew law, who appeared for plaintiff, to the effect: “That Orthodox Judaism required a definite and physical separation of the sexes in the synagogue.” And he also con*363sidered it established by the testimony that an orthodox rabbi-cantor “could not conscientiously officiate in a ‘trefah’ synagogue, that is, one that violates Jewish law”; and it was specifically found that the old building which the congregation left, “had separation in accordance with Jewish orthodoxy.” The ultimate finding was for the plaintiff in the sum of $1,100 plus interest. And the court entered judgment for the plaintiff on the finding. In this appeal it is contended that the defendant is entitled to judgment as a matter of law.

The finding for the plaintiff in this trial without a jury has the force and effect of a verdict of a jury and in support of the judgment entered by the lower court, the plaintiff is entitled to the benefit of the most favorable inferences from the evidence. Jann v. Linton’s Lunch, 150 Pa. Superior Ct. 653, 29 A. 2d 219. Findings of fact by a trial judge, sitting without a jury, which are supported by competent substantial evidence are conclusive on appeal. Scott-Smith Cadillac Co., Inc. v. Rajeski, 168 Pa. Superior Ct. 116, 70 A. 2d 454.

Although the contract is silent as to the nature of the defendant congregation, there is no ambiguity in the writing on that score and certainly nothing was omitted from its terms by fraud, accident or mistake. The terms of the contract therefore could not be varied under the parol evidence rule. Bardwell v. The Willis Company, 375 Pa. 503, 100 A. 2d 102; Mathers v. Roxy Auto Company, 375 Pa. 640, 101 A. 2d 680. Another principle controls the interpretation of this contract.

There is sufficient competent evidence in support of the finding that this defendant was an orthodox congregation, which observed the rule of the ancient Hebrew law as to separate seating during the services of the High Holiday Season; and also to the effect that *364the rule had been observed immemorially and invariably by the defendant in these services, without exception. As bearing on plaintiff’s bona fide belief that such was the fact, at the time he contracted with the defendant, plaintiff was permitted to introduce in evidence the declarations of Rabbi Ebert, the rabbi of the defendant congregation, made to him prior to signing of the contract, in which the rabbi said: “There always was a separation between men and women” and “there is going to be strict separation between men and women”, referring to the seating in the new synagogue. Rabbi Lipsehitz who was present, testified that Rabbi Ebert, in response to plaintiff’s question “Will services be conducted as in the old Congregation” replied “Sure. There is no question about that” referring to the prior practice of separate seating. The relationship of rabbi to the congregation which he serves does not create the legal relationship of principal and agent. Cf. Reifsnyder et al. v. Dougherty Tr., 301 Pa. 328, 152 A. 98. And Rabbi Ebert in the absence of special authority to speak for the congregation could not legally bind the defendant by his declarations to the plaintiff prior to the execution of the contract. Davidsville F. Nat. Bk. v. St. John’s C., 296 Pa. 467, 472, 146 A. 102. But while the declarations of Rabbi Ebert, above referred to would have been inadmissible hearsay as proof of the truth of what was said, yet his declarations were properly admissible as bearing upon plaintiff’s state of mind and his intent in entering into the contract. 1 Henry Pa. Evid., 4th Ed., §§22, 469. “Statements tending to show intent are admissible in evidence although self-serving. Ickes v. Ickes, 237 Pa. 582, 591, 85 A. 885”: Smith v. Smith, 364 Pa. 1, 9, 70 A. 2d 630.

In determining the right of recovery in this case the question is to be determined under the rules of our civil law and the ancient provision of the Hebrew *365law relating to separate seating is read into the contract only because implicit in the writing as to the basis — according to the evidence — upon which the parties dealt. Cf. Canovaro et al. v. Bros. of H. of St. Aug., 326 Pa. 76, 86, 191 A. 140. In our law the provision became a part of the written contract under a principle analogous to the rule applicable to the construction of contracts in the light of custom or immemorial and invariable usage. It has been said that: “When a custom or usage is once established, in absence of express provision to the contrary it is considered a part of a contract and binding on the parties though not mentioned therein, the presumption being that they knew of and contracted with reference to it”: 1 Henry Pa. Evid., .4th Ed., §203. Cf. Restatement, Contracts, §248(2) and §249. In this case there was more than a presumption. From the findings of the trial judge supported by the evidence it is clear that the parties contracted on the common understanding that the defendant was an orthodox synagogue which observed the mandate of the Jewish law as to separate seating. That intention was implicit in this contract though not referred to in the writing, and therefore must be read into it. It was on this ground that the court entered judgment for plaintiff in this case.

Judgment affirmed.

The opinion of the court was delivered by

Parker, C. J.:

Plaintiff is a banking corporation with its place of business at Lawrence, Kansas, and the duly appointed administrator, with the will annexed, of the will of Bertha C. Ellsworth, deceased. Defendant is the Methodist Home For the Aged, a corporation, with its principal place of business at Topeka, Kansas, where it operates a home for the aged.

The events leading up to the institution of this litigation are *101not in controversy and should be stated at the outset in order to insure a proper understanding of the appellate issues involved.

On September 13, 1953, Rertha C. Ellsworth, who desired to be admitted to the defendant’s home and was then single and more than seventy-one years of age, made a written application for admission to such home. Thereafter, having been advised her application had been approved, she was admitted to the home on May 10, 1954, and on the same date entered into the written agreement with defendant which is actually the subject of this litigation. Pertinent portions of such agreement, which we pause to note had been prepared by defendant on one of its standard forms, used for admission of members, read:

“This Agreement, made and entered into this 10th day of May, 1954, by and between The Methodist Home for the Aged, a Corporation, of Topeka, Kansas, Party of the First Part and Bertha C. Ellsworth, of Lawrence, Kansas, Party of the Second Part, Witnesseth:

“Party of the Second Part having this day given Party of the First Part, without reservation, the sum of $10,779.60 to be used and disposed of in the furtherance of its benevolence and charitable work as it may deem best, Party of the First Part admits Party of the Second Part into its Home as a member thereof during the period of her natural life, and agrees to furnish

“Fifth: It is clearly understood that Party of the Second Part has been received in accordance with the new regulations on a probation period of two months in which time she has the opportunity of finding out whether she desires to remain in the Home; and also find out whether the Home is able to satisfy the requirements. If it should be found advisable to discontinue her stay in the Home, then her gift, with the exception of $80.00 per month shall be refunded.

“The rules and regulations and by-laws of the Home as they now are and as they from time to time may be adopted and promulgated by the Board of Directors of said Party of the First Part are hereby referred to and made a part hereof and the Party of the Second Part hereby agrees to be bound by same. It is especially understood and agreed that in case of serious mental illness requiring hospital care and attention, that the First Party shall have the right to make proper arrangements for the treatment and care of the Second Party in a lawful manner in a proper State Institution, provided that if Second Party is discharged as completely cured to admit Second Party into the Home without further financial requirements.” (Emphasis supplied.)

The parties concede that defendant’s by-law, article 12, was in full force and effect on the date of the execution of the agreement and therefore, according to the terms of that agreement, is a part of the contract. It reads:

“Probationary membership means a short trial period while the member becomes adjusted to the life of the Home. The probationary member-ship *102shall not continue for a longer period than two consecutive months. If for any reason the trial member does not desire to remain in the Home he or she shall have the privilege of leaving. On the other hand, if the Home for any reason does not desire to continue the membership then the member shall be notified in writing and leave the Home within a week after such notice is given. Only members who do not have the money or securities to pay for their life Membership shall be granted tire privilege of paying by the month.” (Emphasis supplied.)

After execution of the May 10, 1954, agreement Rertha C. Ells-worth remained in the home until she died on June 10, 1954. At that time neither she nor the home had made an election as to whether she was to leave the home or remain therein after the expiration of the probationary period specified by its terms. However, it is conceded that during the interim, and on June 4, 1954, the plaintiff bank in' its capacity as trustee had paid the defendant the sum of $10,799.60 by a check, which defendant had cashed, specifying that such check was “In Payment of Life Membership for Rertha C. Ellsworth in the Methodist Home for the Aged, as specified in Agreement dated May 10, 1954”, and that defendant had acknowledged payment of that sum by a receipt of like import.

Upon the death of Rertha Ellsworth plaintiff was appointed by the probate court of Douglas County, Kansas, as Administrator CTA of such decedent. Thereafter it made written demand on the defendant for performance under the agreement, including pertinent by-laws, and demanded that defendant refund the estate of its decedent the amount paid pursuant thereto, less any amounts due the Home under its terms, particularly the fifth clause thereof. When this demand was refused plaintiff procured authority from the probate court to institute the instant action to recover such amount as an asset of the estate of Rertha C. Ellsworth, deceased.

Following action as above indicated plaintiff commenced this lawsuit by filing a petition which, it may be stated, recites in a general way that under the more important facts, conditions and circumstances, heretofore outlined, the defendant had never attained a life membership in the home by reason of her death prior to the expiration of the probationary membership period prescribed by the contract, hence the contract should be construed as contemplating her estate was entitled to a return of the money paid by her to defendant for such a membership. When a demurrer to this pleading, based on the ground it failed to state a cause of action, was overruled by the trial court defendant filed an answer alleging *103in substance that under the same facts, conditions and circumstances: the contract between it and the decedent is to be construed as warranting its retention of the sum paid by such decedent for the life-membership even though, prior to her death, such decedent neither indicated that she did not desire to remain in the home nor that she desired the privilege of leaving it. It should perhaps be added that such answer contains an allegation that on May 10, 1954, decedent was permitted to enter the home without having paid her life membership; admits subsequent payment of such membership in the manner heretofore indicated; and makes decedent’s application for admission to the home a part of such pleading.

With issues joined, as heretofore related, the cause came on for trial by the court. During the trial facts, as heretofore related, were established by evidence and at the conclusion thereof the trial court, after holding that the salient question in the case was purely a question of law involving the interpretation of the contract, rendered judgment decreeing that plaintiff was entitled to recover the amount paid by Bertha C. Ellsworth to the Home, less $235 paid by the Home for her funeral expenses and less the sum of $80 provided for in the contract in the event she had elected not to remain in the home. Thereupon defendant perfected this appeal wherein under proper specification of errors it charges the trial court erred in overruling the demurrer to the petition; in rendering judgment for plaintiff and against defendant, wholly contrary to the law and the terms of the agreement; and in overruling its motion for a new trial.

In a preliminary way it can be said a careful examination of the record leads to the inescapable conclusion the trial court was eminently correct in holding that the all decisive question involved in this case is purely a question of law involving the interpretation of the contract entered into between the appellant and Bertha C. Ellsworth, deceased. Indeed the parties make no serious contention to the contrary. For that reason, and others to be presently disclosed, we turn directly to appellant’s claim the trial court’s judgment was contrary to the terms of the agreement and to the law, mindful as we do so that where — as here — the terms of a contract are ambiguous, obscure or susceptible of more than one meaning there are certain well defined rules to which courts must adhere in construing its provisions. Four of such rules, which we believe have special application here, can be stated as follows:

*104■ 1. That doubtful language in a contract is construed most strongly against the party preparing the instrument or employing the words ■concerning which doubt arises. (See Kinmonth v. Holm,, 180 Kan. 389, 392, 304 P. 2d 494; Francis v. Shawnee Mission Rural High School, 161 Kan. 634, 170 P. 2d 807; Green v. Royal Neighbors of ■America, 146 Kan. 571, 73 P. 2d 1; 12 Am. Jur., Contracts, 795 § .252; 17 C. J. S., Contracts, 751 § 324; Hatcher’s Kansas Digest [Rev. ■Ed.], Contracts, § 44; West’s Kansas Digest, Contracts, § 155.)

2. That where a contract is susceptible of more than one construction its terms and provisions must, if possible, be construed in such manner as to give effect to the intention of the parties at the time of its execution. (Braly v. Commercial Casualty Ins. Co., 170 Kan. 531, 227 P. 2d 571.)

3. That in determining intention of the parties where ambiguity exists in a contract the test is not what the party preparing the instrument intended its doubtful or ambiguous words to mean but what a reasonable person, in the position of the other party to the agreement, would have understood them to mean under the existing conditions and circumstances. (Braly v. Commercial Casualty Ins. Co., supra.)

4. That the intent and purpose of a contract is not to be determined by considering one isolated sentence or provision thereof but by considering and construing the instrument in its entirety. (Maltby v. Sumner, 169 Kan. 417, 219 P. 2d 395; In re Estate of Koellen, 162 Kan. 395, 176 P. 2d 544; Lawrence v. Cooper Independent Theatres, 177 Kan. 125, 276 P. 2d 350.)

Stated, substantially in its own language, the principal contention advanced by appellant as grounds for reversal of the judgment is that the membership agreement between it and the involved decedent was fully executed inasmuch as decedent had been admitted to the Home as a life member on May 10, 1954, and thereafter caused her life membership to be paid; hence, since nothing further needed to be done by the parties to make the portion of the agreement relating to life membership binding, provisions of the contract with respect thereto had become fully executed and title to the fee paid for such membership had vested in appellant.

If we could limit our construction of the contract to its first two paragraphs, as heretofore quoted, we might well conclude that appellant’s views respecting the status of the agreement and the gift therein mentioned could be upheld. However, as has been *105previously demonstrated, our obligation is not to consider isolated provisions of the contract but to consider and construe such instrument in its entirety. When succeeding paragraphs of the agreement, and the incorporated by-laws, particularly portions thereof which we have heretofore underlined for purposes of emphasis, are reviewed in the light of the rule to which we have just referred, as well as others heretofore mentioned, we have little difficulty in concurring in the views expressed by the trial court in rendering its judgment that the contract had never become executed and that title to the gift paid by the decedent for a life membership had not vested in the Home. In fact, and without repeating the emphasized portions of the agreement on which we base our conclusion, we go further and hold that, under the clear import and meaning of such emphasized provisions, Bertha C. Ellsworth, because of her untimely death during the probationary and/or trial period expressly required by their terms, never attained a life membership status in the Home. Indeed to hold otherwise would not only do violence to the language of the contract but read into it something that is not there.

One question remains in this lawsuit. Who, the Home or the decedent’s estate, is entitled to the life membership fee paid by decedent to appellant? In this connection it is interesting to note that the money was paid by decedent by a check and receipted for by appellant in writing, each of which instruments contain a recital “In Payment of Life Membership for Bertha C. Ellsworth in the Methodist Home for the Aged, as specified in Agreement dated May 10, 1954.” So, since it cannot be denied the contract contains no express provisions relating to where the money was to go if Bertha Ellsworth died during the probationary and/or trial period prescribed by its terms, it appears we are faced with the obligation of determining what was intended by the parties at the time of the execution of the agreement in the event of such a contingency.

Strange as it may seem, the question thus presented has been before the Courts on but few occasions. However, it has been decided under similar circumstances. An interesting discussion on the subject appears in 10 A. L. R. 2d., Anno., pp. 874, 875 § 12. It reads:

“Many entrance contracts provide for a probationary period during which the applicant for admission to the charitable home as well as the home itself can dissolve the agreement without cause. In case the applicant is refused permanent admission at the end of the trial period or withdraws during the *106period of his own volition, all payments made, less a fixed weekly charge for the time he stayed at the home, are refunded to him and his property rights are restored.

“An interesting situation arises if the applicant dies during the probationary period without having been either accepted or rejected as a permanent inmate. The legal question then is whether or not the charitable home may retain the applicant’s property on the ground that the agreement had not been dissolved by either party.

“In a majority of cases this question has been answered iii the negative and it has been held that the home may not claim or retain the applicant’s property, on the ground that the death of the applicant has made it impossible to determine whether he would have become a. permanent inmate at the end of the probationary period.”

In connection with the foregoing quotation the author cites The Evangelical Lutheran St. S. Cong. v. Bishop, 213 Ill. App. 137; Christenson v. Board of Charities, 253 Ill. App. 380; Kirkpatrick Home For Childless Women v. Kenyon, 119 Misc. 349; 196 N. Y. S. 250, 196 N. Y. S. 475, 199 N. Y. S. 851, as supporting the conclusion reached by him in the concluding paragraph of his discussion and one case only, Dodge v. Home, 95 N. H. 472, 67 A. 2d. 10, as holding to the contrary. We may add our somewhat extended research of the books, including our own reports, discloses no other cases which can be regarded as decisive of the question presented under similar facts, conditions and circumstances.

Again reviewing the contract in the light of the heretofore stated rules, and mindful that appellant, not the decedent, prepared the involved contract, we are impelled to the view that a reasonable person, in the position of the decedent at the time of the execution of the contract, would have understood the provisions of that instrument to mean that unless and until she attained the status of a life member in the appellant’s home she, or her estate, would be entitled to a return of the money paid by her for that right, less amounts specified in the agreement. Moreover we are convinced, that having prepared the contract, appellant’s failure to make express provision therein for retaining the money paid by Bertha C. Ellsworth as a life membership fee, in the event of her death during the period of her probationary and/or trial membership status, precludes any construction of that agreement which would warrant its retention of such money upon the happening of that contingency.

After careful consideration of the decisions last above cited we have concluded those having the effect of holding, under similar *107circumstances, that the appellant cannot claim or retain Rertha Ellsworth’s lifetime payment for the reason her death made it impossible for her to determine whether she was to become a permanent inmate of the Home at the end of the probation period, are more sound in principle and better reasoned than the one case holding to the contrary. Therefore, based on the conclusions heretofore announced and on what is said and held in such decisions, we hold that the trial court did not err in rendering the judgment from which the Home has appealed.

Lest we be charged with overlooking it, we pause here to note, we regard Old Peoples Home v. Miltner, 149 Kan. 847, 89 P. 2d 874, relied on by each of the parties in support of respective claims regarding the propriety of the judgment, as clearly distinguishable and hence of no value as a precedent controlling issues involved in the case at bar.

Contentions advanced by appellant in connection with the overruling of its demurrer to appellee’s evidence and the overruling of its motion for a new trial are the same as those heretofore considered, discussed and determined. For that reason further discussion of the propriety of such rulings is neither necessary nor required.

The judgment is affirmed.

Davis, J.:

The question to be determined is whether the complaint states facts sufficient to constitute a cause of action. The action is brought upon a written agreement which is set forth in full in the complaint. The defendant claims that the agreement is not enforcible against the defendant for lack of mutuality and consideration.

This agreement recites that the defendant occupies a unique and high position as a creator of fashion in America, England and France and that her personal approval and indorsement over her own name of certain articles, fabrics and adjuncts of fashion has a distinct monetary value to manufacturers of such articles and that plaintiff has a business organization adapted to the placing of such indorsements as the defendant has approved. The contract then proceeds to give the plaintiff the exclusive right to place such indorsements as may in his judgment be most advantageous to the defendant, as well as those indorsements approved by defendant or her personal business adviser. The agreement also gives the plaintiff the exclusive right to sell or license others to manufacture and sell certain articles created by the defendant. It then provides that the plaintiff is to collect all profits and revenues from the indorsements obtained, from the sales made and from the licenses granted. The defendant is to receive one-half of these revenues, the plaintiff receiving whatever remains after defraying the cost of securing the revenues, and accounting to the defendant monthly for all moneys received by him. It is also provided that the plaintiff is to procure such patents, copyrights or trade marks as may in his judgment be necessary to protect the names and such ideas or articles as are affected by the contract and to take such proceedings as in his judgment may be necessary to protect the patents, copyrights and trade *626marks, the expense of those proceedings being horn equally by plaintiff and defendant. The complaint alleges that the defendant broke her contract by placing her indorsements on certain articles without his consent and for a valuable consideration, thus denying to the plaintiff the exclusive right to place indorsements, and depriving him of the right to collect the profits and revenues from the indorsements in question and depriving him of his share of those profits and revenues.

It will be observed that the plaintiff by this contract promises to collect the revenues derived from the indorsements, sales and licenses and to pay the cost of collecting them of his half thereof and to account to the defendant each month. But this promise on his part is not binding on him unless he places indorsements, makes sales or grants licenses, and nowhere in the contract has he bound himself to get these indorsements, or make the sales or grant the licenses. The enforcement of his promise to collect and pay over is thus made to depend upon an act which he has not agreed to perform and which the defendant cannot compel him to perform. He promises to collect the revenues from the indorsements provided he sees fit to place the indorsement. It is quite apparent that in this respect the defendant gives everything and the plaintiff nothing and there is a lack of mutuality in the contract. And the same may he said of plaintiff’s agreement to take out patents and protect them by legal proceedings. The performance of this promise cannot be enforced, for the reason that the promise relates to indorsements which he is under no obligation to place, and the performance of it is left entirely to his own judgment. In fact the plaintiff in the nature'of the case could not perform any of his various dependent agreements unless he placed indorsements, made sales or granted licenses to manufacture. And as the contract did not bind him to do any of these things, there is no provision of the contract which the defendant could enforce against him. As was said in the case of Commercial Wood & Cement Co. v. Northampton Portland Cement Co. (115 App. Div. 388, 394; affd., 190 N. Y. 1): “There could never be any breach of this contract by the plaintiff, because under it the plaintiff did not obligate . itself to do anything.”

*627This contract is void for lack of mutuality and consideration, and the order denying defendant’s motion for judgment on the pleadings should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Clarke, P. J., Laughlin, Dowling and Shearn, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

*139HINCKS, Circuit Judge.

Appeal from the United States District Court, Southern District of New York, Walsh, Judge, upon the dismissal of the complaint after plaintiff’s case was in.

The defendant-appellee, a processor of rice, in July 1952 entered into an agreement with the plaintiff-appellant, an exporter, for the sale of 95,600 pockets of rice. The terms of the agreement, evidenced by a purchase memorandum, indicated that the price per pocket was to be “$8.25 F.A.S. Lake Charles and/or Houston, Texas”; that shipment was to be “December, 1952, with two weeks call from buyer”; and that payment was to be by “irrevocable letter of credit to be opened immediately payable against” dock receipts and other specified documents. In the fall, the appellant, which had already committed itself to supplying this rice to a Japanese buyer, was unexpectedly confronted with United States export restrictions upon its December shipments and was attempting to get an export license from the government. December is a peak month in the rice and cotton seasons in Louisiana and Texas, and the appellee became concerned about shipping instructions under the contract, since congested conditions prevailed at both the mills and the docks. The appellee seasonably elected to deliver 50,000 pockets at Lake Charles and on December 10 it received from the appellant instructions for the Lake Charles shipments. Thereupon it promptly began shipments to Lake Charles which continued until December 23, the last car at Lake Charles being unloaded on December 31. December 17 was the last date in December which would allow appellee the two week period provided in the contract for delivery of the rice to the ports and ships designated. Prior thereto, the appellant had been having difficulty obtaining either a ship or a dock in this busy season in Houston. On December 17, the appellee had still received no shipping instructions for the 45,600 pockets destined for Houston. On the morning of the 18th, the appellee rescinded the contract for the Houston shipments, although continuing to make the Lake Charles deliveries. It is clear that one of the reasons for the prompt cancellation of the contract was the rise in market price of rice from $8.25 per pocket, the contract price, to $9.75. The appellant brought this suit for refusal to deliver the Houston quota.

The trial court, in a reasoned but unreported opinion which dealt with all phases of the case, held that New York would apply Texas law. Auten v. Auten, 308 N.Y. 155, 124 N.E.2d 99, 50 A.L.R. 2d 246. We think this ruling right, but will not discuss the point because it is conceded that no different result would follow from the choice of Louisiana law.

The area of contest is also considerably reduced by the appellant’s candid concession that the appellee’s duty to ship, by virtue of the two-week notice provision, did not arise until two weeks after complete shipping instructions had been given by the appellant. Thus on brief the appellant says: “[w]e concede (as we have done from the beginning) that on a fair interpretation of the contract appellant had a duty to instruct appellee by December 17, 1952 as to the place to which it desired appellee to ship —at both ports, and that, being late with its instructions in this respect, appellant could not have demanded delivery (at either port) until sometime after December 31, 1952.” This position was taken, of course, with a view to the contract provision for shipment “December, 1952”: a two-week period ending December 31 would begin to run on December 17. But although appellant concedes that the two weeks’ notice to which ap-pellee was entitled could not be shortened by the failure to give shipping instructions on or before December 17, it stoutly insists that upon receipt of shipping instructions subsequent to December 17 the appellee thereupon became obligated to deliver within two weeks thereafter. We do not agree.

It is plain that a giving of the notice by the appellant was a condition precedent to the appellee’s duty to ship.. *140Corbin on Contracts, Vol. 3, § 640. Id. § 724. Obviously, the appellee could not deliver free alongside ship, as the contract required, until the appellant identified its ship and its location. Jacksboro Stone Co. v. Fairbanks Co., 48 Tex.Civ. App. 639,107 S.W. 567; Fortson Grocery Co. v. Pritchard Rice Milling Co., Tex. Civ.App., 220 S.W. 1116. Thus the giving of shipping instructions was what Professor Corbin would classify as a “promissory condition”: the appellant promised to give the notice and the ap-pellee’s duty to ship was conditioned on the receipt of the notice. Op. eit. § 633, p. 523, § 634, footnote 38. The crucial question is whether that condition was performed. And that depends on whether the appellee’s duty of shipment was conditioned on notice on or before December 17, so that the appellee would have two weeks wholly within December within which to perform, or whether, as we understand the appellant to contend, the appellant could perform the condition by giving the notice later in December, in which case the appellee would be under a duty to ship within two weeks thereafter. The answer depends upon the proper interpretation of the contract: if the contract properly interpreted made shipment in December of the essence then the failure to give the notice on or before December 17 was nonperformance by the appellant of a condition upon which the appellee’s duty to ship in December depended.

In the setting of this ease, we hold that the provision for December delivery went to the essence of the contract. In support of the plainly stated provision of the contract there was evidence that the appellee’s mills and the facilities appurtenant thereto were working at full capacity in December when the rice market was at peak activity and that appellee had numerous other contracts in January as well as in December to fill. It is reasonable to infer that in July, when the contract was made, each party wanted the protection of the specified delivery period; the appellee so that it could schedule its production without undue congestion of its storage facilities and the appellant so that it could surely meet commitments which it in turn should make to its customers. There was also evidence that prices on the rice market were fluctuating. In view of this factor it is not reasonable to infer that when the contract was made in July for December delivery, the parties intended that the appellant should have an option exercisable subsequent to December 17 to postpone delivery until January. United Irr. Co. v. Carson Petroleum Co., Tex.Civ.App., 283 S.W. 692; Steiner v. United States, D.C., 36 F.Supp. 496. That in effect would have given the appellant an option to postpone its breach of the contract, if one should then be in prospect, to a time when, so far as could have been foreseen when the contract was made, the price of rice might be falling. A postponement in such circumstances would inure to the disadvantage of the appellee who was given no reciprocal option. Further indication that December delivery was of the essence is found in the letter of credit which was provided for in the contract and established by the appellant. Under this letter, the bank was authorized to pay ap-pellee only for deliveries “during December, 1952.” It thus appears that the appellant’s interpretation of the contract, under which the appellee would be obligated, upon receipt of shipping instructions subsequent to December 17, to deliver in January, would deprive the appellee of the security for payment of the purchase price for which it had contracted.

Since, as we hold, December delivery was of the essence, notice of Shipping instructions on or before December 17 was not merely a “duty” of the appellant — as it concedes: it was a condition precedent to the performance which might be required of the appellee. The nonoccurrence of that condition entitled the appellee to rescind or to treat its contractual obligations as discharged. Cor-bin on Contracts, §§ 640, 724 and 1252; Willistou on Sales, §§ 452, 457; Restatement, Contracts, § 262; National Com*141modity Corp. v. American Fruit Growers, 6 Terry 169, 45 Del. 169, 70 A.2d 28; Alpena Portland Cement Co. v. Backus, 8 Cir., 156 F. 944; Jungmann & Co. v. Atterbury Bros., Inc., 249 N.Y. 119, 163 N.E. 123; Arnolt Corp. v. Stansen Corp., 7 Cir., 189 F.2d 5. On December 18th the appellant unequivocally exercised its right to rescind. Having done so, its obligations as to the Houston deliveries under the contract were at an end. And of course its obligations would not revive thereafter when the appellant finally succeeded in obtaining an export permit, a ship and a dock and then gave shipping instructions; when it expressed willingness to accept deliveries in January; or when it accomplished a “liberalization” of the outstanding letter of credit whereby payments might be made against simple forwarder’s receipts instead of dock receipts.1

The appellant urges that by reason of substantial part performance on its part prior to December 17th, it may not be held to have been in default for its failure sooner to give shipping instructions. The contention has no basis on the facts. As to the Houston shipments the appellant’s activities prior to December 17th were not in performance of its contract: they were merely preparatory to its expectation to perform at a later time. The mere establishment of the letter of credit was not an act of performance: it was merely an arrangement made by the appellant for future performance which as to the Houston deliveries because of appellant’s failure to give shipping instructions were never made. From these preparatory activities the appellee had no benefit whatever.

The appellant also maintains that the contract was single and “indivisible” and that consequently appellee’s continuing shipments to Lake Charles after December 17 constituted an election to reaffirm its total obligation under the contract. This position also, we hold untenable. Under the contract, the appellee concededly had an option to split the deliveries betwixt Lake Charles and Houston. The price had been fixed on a per pocket basis, and payment, under the letter of credit, was to be made upon the presentation of dock receipts which normally would be issued both at Lake Charles or Houston at different times. The fact that there was a world market for rice and that in December the market price substantially exceeded the contract price suggests that it would be more to the appellant’s advantage to obtain the Lake Charles delivery than to obtain no delivery at all. The same considerations suggest that by continuing with the Lake Charles delivery the appellee did not deliberately intend to waive its right to cancel the Houston deliveries. Conclusions to the contrary would be so greatly against self-interest as to be completely unrealistic. The only reasonable inference from the totality of the facts is that the duties of the parties as to the Lake Charles shipment were not at all dependent on the Houston shipments. We conclude their duties as to shipments at each port were paired and reciprocal and that performance by the parties as to Lake Charles did not preclude the ap-pellee’s right of cancellation as to Houston. Cf. Corbin on Contracts §§ 688, 695; Simms-Wylie Co. v. City of Ranger, Tex.Civ.App., 224 S.W.2d 265.

Finally, we hold that the appellant’s claims of estoppel and waiver have no basis in fact or in law.

Affirmed.

HOKTON, J.

The plaintiff has taken appeal from the Superior Court’s (Dickson, J.) order granting the defendant’s motion to dismiss made at the close of the plaintiff’s case during a jury-waived trial. Two questions are raised on appeal: (1) by what standard should we review the evidence when a judge grants a motion to dismiss during a jury-waived trial; and (2) whether the court erred in its findings and in its order of dismissal based thereon. We find no errors and affirm.

The plaintiff, Renovest Company (Renovest), entered into a purchase and sale agreement with the defendant, Hodges Development Corporation (Hodges), on June 30, 1986, for a two-building apartment complex in Franklin. The agreed-upon purchase price was $1,476,000 and the initial deposit paid to Hodges at the signing of the contract was $65,000. The contract specified that the deposit would serve as liquidated damages if Renovest failed to close on or before September 3, 1986.

*74Three conditions precedent to the buyer’s obligation to perform were contained in the contract. At issue here are paragraph 3(b), relating to physical inspection of the property, and paragraph 3(d) relating to the buyer’s obtaining financing at certain rates and terms. No portion of the contract stated expressly that time was of the essence. The provision relating to inspection called for the inspection to be completed within fourteen working days, and specified that if the inspection was unsatisfactory, the “Buyer shall have three (3) days from the date of completion of such inspection in which to notify Seller of his disapproval, and this Agreement shall be null and void and all deposits hereunder shall be refunded in full.” The outside date on this condition was July 24. The financing provision contained a forty-five-day limit, after inspection of the seller’s business records, in which the buyer was required to notify the seller of an intention to invoke the financing condition clause. Paragraph 9 of the contract required that all notices be given in writing.

Renovest first inspected the buildings on July 10, 1986, sending a partner and a building inspector. It was during this inspection that Renovest discovered a crack in the exterior of one building, and it consulted with Hodges the next day. Whether Hodges agreed to extend the deadline in order to allow further inspection by Renovest is disputed. Further investigation was performed on July 17 and 23 by another engineer, and his report on August 6 contained his opinion that the building would require “underpinning” of the foundation in order to prevent further settling of the building. Underpinning involves stabilization of the building’s foundation. Based on this report, Renovest wrote to Hodges on August 7, terminating the transaction and demanding return of the $65,000 deposit. Hodges undertook its own engineering study, which commenced with borings on August 12 and culminated in an evaluation report dated August 26. This report described the cracking as cosmetic, found the problem building structurally sound, and rejected the need for underpinning. Hodges shared this report with Renovest.

Renovest did initially undertake to secure the financing by approaching four banks. Two of these, the Bank of New England and the Shawmut Bank, were favorably disposed toward the financing application, up to the time that Renovest notified them of the results of the engineer’s report about the building’s structural problems. Upon receipt of this information, the banks indicated they would not continue to process the loan applications until the issue of the building’s structural soundness was resolved. Although time still remained in which to meet the financing deadline, Renovest never *75pursued the applications further. A second letter sent by Renovest to Hodges on August 12 asserted the failure to obtain financing, as well as an unsatisfactory result of the inspection of Hodges’s books and records, as additional grounds for the termination of the contract. Renovest no longer asserts the books and records contingency as a ground for the termination.

At trial on its suit to obtain return of its deposit, Renovest presented three witnesses and introduced the deposition of a fourth witness. After Renovest rested, Hodges moved to dismiss, both orally and in writing, and the judge granted the motion based on the court’s findings of fact. Rather than making a determination of whether the plaintiff established a prima facie case, the judge specifically concluded that Renovest’s objection to the building’s structure was untimely, and that Renovest prematurely terminated its attempts to obtain financing. He therefore ruled that the plaintiff had failed to carry its burden of proof, and granted the defendant’s motion to dismiss. Renovest appeals the findings of the court, and asserts that, viewing the evidence presented to the judge in the light most favorable to it, Renovest had met its initial burden of presenting a prima facie case.

I. Standard of Review

In most circumstances, the appropriate standard of review for a motion to dismiss (or nonsuit) is to take the evidence presented and determine if, viewed most favorably to the non-moving party, it establishes a prima facie case. Morrill v. Tilney, 128 N.H. 773, 777, 519 A.2d 293, 295 (1986). This standard has previously been applied, at least in one instance, in a bench trial case. See Auclair v. Bancroft, 121 N.H. 393, 395, 430 A.2d 169, 171 (1981).

The defendant, Hodges, urges that, although it would prevail under either standard, this court should adopt a standard recognizing that when the judge is the trier of fact, that judge may make findings of fact at the close of the plaintiff’s case, which findings are entitled to deference upon review, unless clearly erroneous.

In Auclair, a case appealed from an order issued during a jury-waived trial at the same trial juncture as the present case, we applied the standard of viewing all evidence in the light most favorable to the plaintiff. Auclair supra. Auclair arose in a different procedural setting from the case before us today. Rather than dismissing the case on the basis of findings of fact made against the plaintiff, as in the present case, the trial judge in Auclair declined to make findings of fact at the close of the plaintiff’s case, and instead chose to hear the *76defendant’s case. Indeed, the trial judge ultimately made findings of fact in favor of the plaintiff. Id. In reviewing the decision not to make findings of fact, we applied the standard of a prima facie case to justify having the case proceed, as we had no findings of fact to review. If faced with a prima facie case presented by the plaintiff, and if uncertain as to the propriety of making factual findings from the evidence, the trial judge, acting without a jury, certainly has the discretion to require the defendant to proceed. If the defendant is secure in its assessment of the evidence, it may rest its case.

Our standard of review is a common-law, court-developed, doctrine based upon a weighing of the benefits of an expedited trial, and the resulting judicial efficiencies, against the risk of losing what might be developed in extended proceedings. As a court-developed doctrine, an appropriate standard may be established by this court in circumstances where no separate trier of fact exists and we are not, therefore, obligated to preserve a separate prerogative. See Briere v. Briere, 107 N.H. 432, 434, 224 A.2d 588, 590 (1966); Dean v. Smith, 106 N.H. 314, 317, 211 A.2d 410, 412-13 (1965).

We believe the better view is that supported by Hodges. The purpose behind the highly deferential “prima facie” standard for evaluating the plaintiff’s evidence is to permit the issue to go to the jury if it is possible for the jury to resolve the issue in the plaintiff’s favor, to preserve all factual matters that reasonably might be determined against the moving party. See Page v. Parker, 43 N.H. 363, 366 (1861). Therefore, the issue must go to the jury upon the presentation of a prima facie case, regardless of the judge’s view of the weight of the evidence. R. Wiebusch, 5 New Hampshire Practice, Civil Practice and Procedure § 1585, at 298 (1984).

A motion to dismiss, made to the judge in a jury-waived trial at the close of the plaintiff’s case, can challenge the plaintiff’s case in either of two ways. Although both types of motion are referred to as “motions to dismiss” in many jurisdictions, they serve two very separate purposes. One, directed at the judge in his role as judge, is used to assess the legal sufficiency of the case, and is measured by the familiar prima facie standard, taking all evidence introduced and resolving all conflicts in the plaintiff’s favor. The second, however, is a broader one, asking the judge, as the trier of facts, for an expedited disposition. On such a motion, the judge is permitted to render a verdict for the defendant, on the merits, at the close of the plaintiff’s case. Should the judge choose to address the case on the merits at that time, the judge should make findings of fact and assess whether *77the plaintiff has carried his or her burden by a preponderance of the evidence.

The plaintiff has had the chance to prove his or her case, tested by cross-examination, but unchallenged by the defendant’s case-in-chief. The plaintiff has no right to rely on the defendant’s witnesses or exhibits to supply essential elements of his or her case. An alert defendant, perceiving a fatal hole in the plaintiff’s case or satisfied with the state of the record, may rest without putting on a case. The plaintiff has no right to require the defendant to proceed. On the other hand, the defendant should be allowed to test the sufficiency of the plaintiff’s proof before making the decision to proceed.

In a case where the judge is also serving as the trier of fact, the judge can halt the trial at the close of the plaintiff’s case when he or she determines that the facts, as presented, will not be sufficient to meet the burden of establishing the case. The judge need not review the evidence by the prima facie standard to see if the plaintiff might meet the burden, based on possible findings of fact, but rather, as the trier of fact, can evaluate whether the plaintiff has actually met the burden to the court’s satisfaction. The “prima facie case means little or nothing in a case tried to the court where it is clear, as it is here, that the trial court has weighed the evidence and found that the [claim] was not established.” Totem Equip. Co. v. Critchfield Log. Co., 62 Wash. 2d 175, 178, 381 P.2d 738, 739 (1963). “[T]he trial court was the trier of the facts, and in considering the evidence was not bound to view it in a light most favorable to the plaintiff, with all attendant favorable presumptions, but was bound to take an unbiased view of all the evidence, direct and circumstantial, and accord it such weight as he believed it entitled to receive.” Allred v. Sasser, 170 F.2d 233, 235 (7th Cir. 1948). Quite simply, if the trial judge determines that the plaintiff has failed to present evidence which may persuade the judge at the close of the case, by a preponderance of the evidence, no need exists to hear the case in defense.

This standard of review has been adopted in whole or in part in the procedural rules of many States. See, e.g., Teodonno v. Bachman, 158 Colo. 1, 4, 404 P.2d 284, 285 (1965); Warner Corporation v. Magazine Realty Co., 255 A.2d 479, 481 (D.C. 1969); Pichulik v. Air Conditioning & Heating Service Co., 123 Ga. App. 195, 196-97, 180 S.E.2d 286, 288 (1971); Grieser v. Haynes, 404 P.2d 333, 335-36 (Idaho 1965); Neasham v. Day, 34 N.C. App. 53, 55, 237 S.E.2d 287, 288 (1977). It has also been applied by courts in States where the rules of civil procedure do not include it. See N. Fiorito Co. v. State, *7869 Wash. 2d 616, 618-19, 419 P.2d 586, 588 (1966). We hold that when the trial judge is sitting as the trier of fact, he or she appropriately may make findings of fact at the close of the plaintiff’s case-in-chief, and may use such facts to determine whether the plaintiff has established the case by a preponderance of the evidence. On appeal, we will not overrule these findings of fact, unless they are clearly erroneous, nor will we reverse the dismissal based thereon unless it is inconsistent with the findings or otherwise contrary to law.

II. Time of the Essence

In his order dismissing the complaint, the trial judge found that time was of the essence for the exercise of the rights under the conditions precedent. The judge based his conclusion on the strict time provisions applicable to performance of the conditions, concluding that these provisions required strict compliance with the timetables established. The court therefore determined that the late notification precluded the plaintiff’s invoking its right to terminate the agreement under the physical inspection condition. The court apparently also determined that no waiver of the deadline occurred during the relevant period.

Renovest correctly asserts that ordinarily time is not made of the essence in a contract, absent some indication that the parties intended otherwise. Moore v. Sterling Warner Indus. Inv. Corp., 114 N.H. 520, 522, 323 A.2d 581, 583 (1974). The mere fact that a date is stated in the contract is not sufficient, by itself, to alter this rule. Id. Renovest argues that the issue must be resolved based on the evidence adduced at trial up to the point of the judge’s dismissal, and that none of this evidence established that time was of the essence. Citing Allard & Geary, Inc. v. Faro, 122 N.H. 573, 448 A.2d 377 (1982) (evidence that word “before” was inserted by closing date, as well as that defendant orally informed buyer that time was crucial), Renovest asserts that the trial judge incorrectly applied our precedents to find sufficient indicia of such intent.

Renovest’s argument is inapplicable in the present case, because the terms involved are express conditions precedent. The plaintiff’s duty to perform under the contract was made “subject to” performance of these conditions. Where “the occurrence of a condition is required by the agreement of the parties, rather than as a matter of law, a rule of strict compliance traditionally applies.” E.A. Farnsworth, Contracts § 8.3, at 544 (8th ed. 1982); see also 5 S. Williston, Contracts § 669 (3d ed. 1961). The reasoning behind *79this rule is that when the parties expressly condition their performance upon the occurrence or non-occurrence of an event, rather than simply including the event as one of the general terms of the contract, the parties’ bargained-for expectation of strict compliance should be given effect. Therefore, absent waiver or extension by the defendant, written notification of disapproval of the building inspection was required to be given by Renovest no later than July 24. Lemay v. Rouse, 122 N.H. 349, 351-52, 444 A.2d 553, 555 (1982). The trial court’s finding of absence of timely compliance with the building inspection condition is correct.

III. Waiver of Terms

Renovest further argues that the express condition’s deadline for notification was waived by Hodges in the July 11 phone conversation. During this conversation, Hodges’s vice president, Barry Sanborn, agreed with Renovest’s suggestion that Renovest hire a structural engineer to conduct further inspection. Renovest takes this approval to be a waiver of the notification time limit. We disagree.

A finding of waiver must be “based upon an intention expressed in explicit language to forego a right, or upon conduct under the circumstances justifying an inference of a relinquishment of it.” Kilgore v. Association, 78 N.H. 498, 502, 102 A. 344, 346 (1917). A waiver may be express or implied. Renovest does not assert an express waiver.

Whether an implied waiver occurred is a question of fact, and we will not overturn the trial judge’s determination that no waiver occurred, unless such finding is clearly erroneous. See D.M. Holden, Inc. v. Contractor’s Crane Serv., Inc., 121 N.H. 831, 834, 435 A.2d 529, 531 (1981). Thomas Sheedy, one of the partners in Renovest, testified at trial that Hodges’s acquiescence in the follow-up inspection left him with the impression that he would get an extension of time. Although Renovest did introduce evidence that Hodges suggested the hiring of a structural engineer, Hodges responds that this suggestion does not show an intent to extend the time limit, because there were still ten days remaining in which the inspection could be accomplished.

All the evidence presented by Renovest does not compel the trier of fact to believe the assertion that a waiver occurred. See 93 Clearing House, Inc. v. Khoury, 120 N.H. 346, 350, 415 A.2d 671, 674 (1980). The trier of fact may simply choose to disbelieve a witness. See id. The judge could have based his conclusion on the cross-examination of Mr. Sheedy, which went as follows:

*80“Q. Are you telling us that Hodges told you that the termination deadline of paragraph 3-B was being waived?

A. When I made my inspection, they agreed I’d get a structural engineer after July 10th.

Q. They agreed you would get a structural engineer after July 10th?

A. Yes.

Q. They told you that?

A. Yes.

Q. That is not the same thing as saying we agreed to extend the deadline date under paragraph 3-B.

A. I took it to mean there was an extension.

Q. Did anyone say there was an extension of the termination date under 3-B?

A. Not in writing.

Q. Did they say it verbally?

A. They said we were allowed to go get a structural engineer.

Q. You have told us that, but did they tell you you were allowed to extend the time to terminate it?

A. No.

Q. And you never did request an extension in writing, did you?

A. No, I asked them for it.

Q. You never got an extension in writing.

A. I didn’t get it in writing.”

The contract that the parties agreed to recited that “this Agreement may not be changed orally, but only by an agreement in writing, duly executed by or on behalf of the party or parties against whom enforcement or any waiver ... is sought.” No writing invoking the physical inspection termination condition was sent until August 7.

As it was Renovest’s duty to establish a waiver, the judge was not obligated to wait for credible evidence that no waiver occurred. Viewing this evidence, we cannot conclude that the trial judge’s finding was clearly erroneous.

*81IV. Financing Condition

Renovest asserts that it was unable to obtain financing for the project and, therefore, was excused from performing by paragraph 3(d). That paragraph, under the heading “Conditions Precedent to Buyers [sic] Obligation to Perform,” reads:

“d. This Agreement is subject to Buyer obtaining a written commitment for First Mortgage financing from a lending institution with the following terms.... The commitment to be obtained within 45 days from the date of Buyers [sic] receipt of the books and records. Buyer shall notify Seller in writing within 45 days from review of the books and records of his intention to exercise the right to terminate this Offer under this mortgage contingency clause.”

We also reject Renovest’s reliance upon this provision.

Under New Hampshire law, every contract contains an implied covenant of good faith performance and fair dealing. Seaward Constr. Co. v. City of Rochester, 118 N.H. 128, 129, 383 A.2d 707, 708 (1978). Reasonable efforts must be undertaken to secure financing. Lach v. Cahill, 138 Conn. 418, 422, 85 A.2d 481, 482 (1951). While initially Renovest met this duty, by initiating the loan process, its later conduct supports the trial judge’s finding that performance of the agreement was not excused by Renovest’s inability to obtain financing. Renovest asserts that it sought the financing required under the contract, but after making the lending institutions aware of the purported construction deficiencies, it assumed that financing would be unavailable.

The question whether any structural defects were material to financing rested solely with the banks. Having undertaken to secure financing, Renovest was committed to affirmatively seeking such financing, with activity “reasonably calculated to obtain the approval by action or expenditure not disproportionate in the circumstances.” Stabile v. McCarthy, 336 Mass. 399, 404, 145 N.E.2d 821, 824 (1957). Reasonable efforts by Renovest were required to determine and communicate the accurate status of the observed building flaws. The evidence showed that the engineering report reflecting absence of structural defects was not shared with the interested banks. The record lends ample support to the trial court’s finding that Renovest’s attempts to secure financing were terminated prematurely.

The ultimate determination of whether to provide financing is one for the lender, and Renovest’s unilateral belief that financing would *82be unavailable due to the structural defect is insufficient to excuse it from performing under the financing condition. If Renovest felt an obligation to provide the banks with information about the structure, then it should provide all information it had. It cannot choose to release information selectively. While this does not impose a duty to misrepresent information submitted to the lenders, see Trading Co. v. Jensen, 200 Va. 744, 749, 107 S.E.2d 441, 444 (1959), there is an obligation to provide credible information supporting its application. Such information was in the applicant’s hands, indicating that the structure was sound. There was no evidence presented that financing would be unavailable from the banks had they, in the words of Sta-bile, “been afforded opportunity to examine a more skillfully prepared plan, reasonably adjusted to meet the problems encountered during its preparation.” 336 Mass. at 406, 145 N.E.2d at 825. Provided the lender’s requests for information are reasonable, there is an obligation on buyers to seek approval, even if they, themselves, believe the effort to be futile. Use of the information in the financing decision is determined by the lending banks.

Applying these considerations to the record before us, we conclude that the trial judge could have determined that Renovest failed to make a good faith effort to secure financing and prematurely terminated its loan application effort. The question of the reasonableness of such effort is for the trier of fact to decide. See Allview Acres v. Howard, 229 Md. 238, 244, 182 A.2d 793, 796 (1962). The record discloses that both the Shawmut Bank and the Bank of New England indicated they were “favorably disposed” to going forward with the loan, provided the structural problem was resolved as not being severe. This falls short of showing that an appropriate application, accompanied by all available information, would have been rejected or have been an empty gesture. Stabile, 336 Mass. at 406, 145 N.E.2d at 825. The deposition of Shawmut’s loan officer, introduced into evidence, succinctly shows the dilemma of the bank. In responding to a question on whether the bank had undertaken an investigation of the structural questions, the loan officer responded:

“A. ... I might have been tempted to have, were we really interested in doing the loan, have the bank commission a separate engineering study using someone of our choosing.

Q. Did you go to that stage?

*83A. No, because I think it was clear to me that — well, for two reason[s]: one, I think the borrowers were having some questions themselves about whether they wanted to proceed based on their own engineering report, and if they’re questioning it there’s no point in me having the bank involved at that point. That’s why I said that they should do their best to resolve the issue, and then if they wanted to re-present it, they could, but they didn’t.”

Based on this evidence, the trial judge could have concluded that Renovest failed to make reasonable efforts to obtain the loan, and further concluded, as did the loan officer, that Renovest did not really wish to proceed with the loan process. Although Renovest concluded that the banks would not give financing, based on its own engineer’s report, the fact that Renovest was aware of Hodges’s engineering report stating that the building was structurally sound, and yet did not submit this in support of its application, could support a conclusion that Renovest did not use all reasonable efforts to obtain financing.

The fact finder below reasonably could have reached the conclusion that Renovest could not invoke the financing contingency because it prematurely ceased its efforts to secure financing.

Affirmed.

BROCK, C.J., and JOHNSON, J., did not sit; the others concurred.

*841BOYD, Acting Chief Justice.

We issued an order allowing certiorari in these two causes because the decisions in them of the District Court of Appeal, Second District, conflict with the decision in Edward J. Gerrits, Inc. v. Astor Electric Service, Inc., 328 So.2d 522 (Fla.3d DCA 1976).1 The two causes have been consolidated for all appellate purposes in this Court because they involve the same issue. That issue is whether the plaintiffs, Modern Air Conditioning and Overly Manufacturing, were entitled to summary judgments against Peacock Construction Company in actions for breaches of identical contractual provisions.

Peacock Construction was the builder of a condominium project. Modern Air Conditioning subcontracted with Peacock to do the heating and air conditioning work and Overly Manufacturing subcontracted with Peacock to do the “rooftop swimming pool” work. Both written subcontracts provided that Peacock would make final payment to the subcontractors,

“within 30 days after the completion of the work included in this sub-contract, written acceptance by the Architect and full payment therefor by the Owner.”2

Modern Air Conditioning and Overly Manufacturing completed the work specified in their contracts and requested final payment. When Peacock refused to make the final payments the two subcontractors separately brought actions in the Lee County Circuit Court for breach of contract. In both actions it was established that no deficiencies had been found in the completed work.3 But Peacock established that it had not received from the owner4 full payment for the subcontractors’ work. And it defended on the basis that such payment was a condition which, by express term of the final payment provision, had to be fulfilled before it was obligated to perform under the contract. On motions by the plaintiffs, the trial judges granted summary judgments in their favor. The orders of judgment implicitly interpreted the contract not to require payment by the owner as a condition precedent to Peacock’s duty to perform.

The Second District Court of Appeal affirmed the lower court’s judgment in the appeal brought by Modern Air Conditioning.5 In so doing it adopted the view of the majority of jurisdictions6 in this country that provisions of the kind disputed here do not set conditions precedent but rather constitute absolute promises to pay, fixing payment by the owner as a reasonable time for when payment to the subcontractor is to be made. When the judgment in the Overly Manufacturing case reached the Second District Court, Modern Air Conditioning had been decided and the judgment, therefore, was affirmed on the authority of the *842latter decision.7 These two decisions plainly conflict with Gerrits, supra.

In Gerrits, the Court had summarily ordered judgment for the plain tiff/subcontractor against the defendant/general contractor on a contractual provision for payment to the subcontractor which read,

“The money to be paid in current funds and at such times as the General Contractor receives it from the Owner.” Id. at 523.

In its review of the judgment, the Third District Court of Appeal referred to the fundamental rule of interpretation of contracts that it be done in accordance with the intention of the parties. Since the defendant had introduced below the issue of intention, a material issue, and since the issue was one that could be resolved through a factual' determination by the jury, the Third District reversed the summary judgment and remanded for trial.

Peacock urges us to adopt Gerrits as the controlling law in this State. It concedes that the Second District’s decisions are backed by the weight of authority. But it argues that they are incorrect because the issue of intention is a factual one which should be resolved after the parties have had an opportunity to present evidence on it. Peacock urges, therefore, that the causes be remanded for trial. If there is produced no evidence that the parties intended there be condition precedents, only then, says Peacock, should the judge, by way of a directed verdict for the subcontractors, be allowed to take the issue of intention from the jury.

The contractual provisions in dispute here are susceptible to two interpretations. They may be interpreted as setting a condition precedent or as fixing a reasonable time for payment. The provision disputed in Gerrits is susceptible to the same two interpretations. The questions presented by the conflict between these decisions, then, are whether ambiguous contractual provisions of the kind disputed here may be interpreted only by the factfinder, usually the jury, or if they should be interpreted as a matter of law by the court, and if so what interpretation they should be given.

Although it must be admitted that the meaning of language is a factual question, the general rule is that interpretation of a document is a question of law rather than of fact. 4 Williston on Contracts, 3rd Ed., § 616. If an issue of contract interpretation concerns the intention of parties, that intention may be determined from the written contract, as a matter of law, when the nature of the transaction lends itself to judicial interpretation. A number of courts, with whom we agree, have recognized that contracts between small subcontractors and general contractors on large construction projects are such transactions. Cf. Thos. J. Dyer Co. v. Bishop International Engineering Co., 6 Cir., 303 F.2d 655 (1965). The reason is that the relationship between the parties is a common one and usually their intent will not differ from transaction to transaction, although it may be differently expressed.

That intent in most cases is that payment by the owner to the general contractor is not a condition precedent to the general contractor’s duty to pay the subcontractors. This is because small subcontractors, who must have payment for their work in order to remain in business, will not ordinarily assume the risk of the owner’s failure to pay the general contractor. And this is the reason for the majority view8 in this country, which we now join.

Our decision to require judicial interpretation of ambiguous provisions for final payment in subcontracts in favor of subcontractors should not be regarded as anti-general contractor. It is simply a recognition that this is the fairest way to deal with the problem. There is nothing in this opinion, however, to prevent parties to these contracts from shifting the risk of payment failure by the owner to the subcontractor. But in order to make such a shift the con*843tract must unambiguously express that intention. And the burden of clear expression is on the general contractor.

The decisions, of the Second District Court of Appeal to affirm the summary judgments were correct. We adopt, therefore, these two decisions as the controlling law in Florida and we overrule Gerrits, to the extent it is inconsistent with this opinion.

The orders allowing certiorari in these two causes are discharged. It is so ordered.

ENGLAND, SUNDBERG, HATCHETT and KARL, JJ., concur.