DISSENTING OPINION The difficulties in this controversy arose because the trustee was attempting to act as his own lawyer even though he and the school township were entitled to the competent services of a skilled member of the legal profession at public expense. Although there are exceptions to most generalizations, the facts here demonstrate that there is much wisdom in the old adage that "He who acts as his own lawyer has a fool for a client." It has particular force to one in *Page 25 the public service who has no authorities except those granted by statute.
The Legislature has provided by statute that, "Contracts wherein a township school corporation is a party shall be deemed to continue in force for the succeeding school year . . ." unless "the teacher shall be notified by the school corporationin writing . . . that such contract will not be renewed for such succeeding year," or unless the teacher submits his or her"written resignation" or, "unless such contract is superseded by another contract between the parties." (Italics supplied.) Section 28-4321, Burns' 1948 Replacement. This statute by operation of law became a part of the contract and governed the rights of the parties. State ex rel. Anderson v. Brand (1937), 214 Ind. 347, 5 N.E.2d 531, 7 N.E.2d 777; McClanahan v. Breeding (1909), 172 Ind. 457, 88 N.E. 695; Simons v.Kosciusko Building, Loan Savings Assn. (1913), 180 Ind. 335, 103 N.E. 2; Dollman v. Pauley (1931), 202 Ind. 387,174 N.E. 729.
The form which the trustee attempted to deliver to the teacher the last day of the school year was not prepared by the teacher, but was furnished by the trustee, and the words used therein should be construed most strongly against the trustee. MunicipalCity of South Bend v. Blue Lines, Inc. (1942), 219 Ind. 462,38 N.E.2d 573, 39 N.E.2d 439; Rosenbaum v. Nowak MillingCorp. (1943), 22 Ind. 108, 51 N.E.2d 623; Winnemucca Water Light Co. v. Model Gas Engine Works (1913), 179 Ind. 542, 101 N.E. 1007.
This court should not determine this appeal on the basis of what the township trustee said he intended and meant by the form he used. Even if his self-serving statements should be considered, the fair construction *Page 26 of his testimony is that he intended the instrument to be a resignation. Four times in his testimony he uses the words "resign" or "resignation." It is quite obvious it could not be a resignation, and at the same time a dismissal.
The legal effect of the words used is for this court to determine. The township trustee had already signed the instrument, and from the fact that there was a blank place for the signature of the teacher, there was indicated an intention in law that the instrument was not to become effective unless both parties signed the same. The legal effect of the trustee's acts only constituted an offer to the teacher to rescind her continuing contract. An unaccepted offer must be construed by the same standards as an accepted offer. The wording as used in the instrument would indicate that the parties were memorializing that agreement. Such a contract of rescission is based upon a valid consideration for "the promise of one party to forego his rights under the contract is sufficient consideration for the promise of the other party to forego his rights." 6 Williston,Contracts (Rev. Ed.) § 1826, p. 5170.
Even in contracts not governed by statutory law where the contract provides for a right of rescission under certain circumstances or by certain acts, "it is essential that the provisions of the original reservation be strictly followed." 6 Williston, Contracts (Rev. Ed.) § 1826, p. 5175.
If the instrument constituted statutory notice that such contract "would not be renewed for such succeeding year," why was it necessary that the teacher join in execution of the instrument as the form provided? Likewise, why was it necessary that the trustee mail another notice to the teacher by registered mail, *Page 27 which in the argument of this appeal was conceded to have been mailed too late to comply with the statute?
It is not the duty or function of a court of review to make over contracts for litigants. International Shoe Co. v. Lacy (1944), 114 Ind. App. 641, 53 N.E.2d 636; Jenkins v. King (1946), 224 Ind. 164, 65 N.E.2d 121. The intent of the instrument must be the intent therein expressed.1 This court should have no concern with the policy or wisdom of legislation regulating the contract rights of teachers and school corporations. If teachers' rights are to be forfeited as provided by the statute, that statute should be strictly followed, which was not done in this case. I would reverse the judgment.
1 ". . . Nevertheless, the distinction is a real one, and it may be said without qualification that if the parties have made a memorial of their bargain, or a writing is required by law, their actual intent unless expressed in some way in the writing is ineffective, except when it can be made the basis for reformation of the writing. It is true that it is commonly said that the court in the interpretation of contracts is endeavoring to find the intention of the parties. The natural meaning of this language is that the court is endeavoring to find as a controlling factor what, as has just been seen, may be wholly ineffectual. In contracts of which no memorial is made and no writing required by law, it is doubtless true that where parties have made a bargain which both of them understand in a certain sense, their intent (which at least has been made plain to one another) must be sought, however inadequately it may have been expressed. But in contracts of the other class, this is not true, and though courts say they are seeking the intention of the parties, the assertion is even more emphatic that this intention can be found only in the expressions of the parties in the writing. In effect, therefore, it is not the real intent but the intent expressed or apparent in the writing which is sought." 3 Williston, Contracts (Rev. Ed.) § 610, pp. 1751, 1752. *Page 28