dissenting.
Because I believe that the judgment of the trial court should be affirmed, I dissent from that portion of the majority opinion which reverses the judgment.
Elrod brought his action in three counts. Count I was in contract and was submitted to a jury which found in favor of Elrod. The School District has appealed the eventual judgment entered by the trial court on that count in the amount of $23,375. The District’s appeal raises the following issues. First, that the trial court should have directed a verdict for the School District because the District had complied with § 168.124, RSMo 1978. Second, that the plaintiffs verdict director modeled on MAI 26.02 was improper since the interpretation of the contract was in issue. Third, that a remittitur should have been entered to the extent of the offer to re-employ at a salary of $18,775, and that the court erred in failing to give the School District’s instruction on mitigation of damages.
On the first issue the School District argues that it did not breach its contract because the actions taken by the School District were authorized by § 168.124, *477RSMo 1978. To flesh out this argument, the School District cites Frimel v. Humphrey, 555 S.W.2d 350 (Mo.App.1977), for the proposition that the statute applies to tenured as well as probationary teachers. The District also urges that under School District v. Clymer, 554 S.W.2d 483 (Mo.App.1977), the School District had discretion to manage school affairs and that the evidence was abundant that the condition of the School District required the action that was taken. The argument simply does not meet the issue. There is no dispute in the case that the District needed to retrench. There is no dispute that the District was entitled to place teachers on an unrequested leave of absence to overcome the deficit encountered. The dispute is whether the statute permits the action which the school board undertook in the case.
The statute in relevant part follows:
168.124. Board may place on leave— provisions governing. — The board of education of a school district may place on leave of absence as many teachers as may be necessary because of a decrease in pupil enrollment, school district reorganization or the financial condition of the school district. In placing teachers on leave, the board of education shall be governed by the following provisions:
(1) No permanent teacher shall be placed on leave of absence while probationary teachers are retained in positions for which a permanent teacher is qualified;
(2) Permanent teachers shall be retained on the basis of performance-based evaluations and seniority (however, seniority shall not be controlling) within the field of specialization;
§ 168.124(1M2), RSMo Supp.1984.
The parties have assumed that the plaintiff Elrod’s contract was as a “teacher” so as to bring the contract within the language of the first paragraph above. Based upon the plain, unambiguous language of the contract which was offered and accepted, he was a teacher. An entirely different issue might be presented if the contract had been in terms of one serving as a member of the administrative staff, and not as a teacher. The District, in its testimony, conceded that under the original contract Elrod could have been assigned as a teacher.
Assuming then as have the parties that the original contract was as a teacher, with an assignment as principal, what does the statute permit? The statute permits the District to place such a tenured teacher on involuntary leave of absence when no probationary teacher remains employed in a position for which the permanent teacher is qualified. No other meaning can be given to the statutory language:
(1) No permanent teacher shall be placed on leave of absence while probationary teachers are retained in positions for which a permanent teacher is qualified;
§ 168.124(1).
The District had no right to place Elrod on leave of absence on June 6 because there was a probationary teacher still employed.
After the probationary teacher was displaced, the School District could have place Elrod on a leave of absence if no other probationary teachers remained and a determination was made under § 168.124(2) that he was not entitled to retention within his field of specialty. The only evidence as to other probationary teachers was from the plaintiff Elrod who said Claudia Keyes and Steve Hopkins, both probationers, held positions for which he was qualified. Claudia Keyes was later placed on leave of absence. Hopkins was not. The only evidence was that the statute had not been complied with and that the District had no authority to terminate the Elrod contract. The motion for a directed verdict was properly overruled.
The second issue raised by the District is that plaintiff’s verdict director was improper. The District argues that the meaning of the contract is unclear and that the terms were in dispute. The District obfuscates when it asserts that there was a dispute as to the interpretation of the con*478tract. It argues there was a dispute as to the meaning of § 168.124. There could be no dispute as to the meaning of the statute insofar as the retention of probationer-status teachers is concerned. The statute could not be stated in more unequivocal terms. All of the discussion and argument concerning the assignment of Elrod is likewise immaterial. There is no exception in the statutory language for teachers employed as administrators. Elrod’s contract was either covered by the statute or it was not. If it was covered by the statute, the statute was not complied with because El-rod was placed on leave of absence while a teacher with probationary status remained in employment. What the District seeks to do is to have the statute interpreted so as to provide a different treatment for tenured teachers employed as administrators. There is nothing in the statute to support that proposition. District also contends that the issue was whether or not the District complied with § 168.124 and that issue was never presented to the jury. This latter contention has already been answered. The District did not comply with the statute and there is no evidence to the contrary.
Teachers’s contracts are no different than other contracts. They are to be enforced as written. Unless the statute permits the District to avoid the contract, El-rod was entitled to its performance. Nor does the salary schedule for teachers affect the dispute in any way. The schedule by its terms denies any contractual effect and positively asserts that it is advisory only. The District specifically reserved the right to deviate from the schedule. The District admitted at least one teacher was employed for an extended term beyond the scope of the teachers’ salary schedule. The proffered re-employment of Elrod at a reduced salary is, simply put, an attempt to vary the terms of a written contract with no basis in law to support the attempt.
Insofar as the issue of remittitur is predicated upon the refusal of the District’s offered instruction on mitigation, the point is not properly preserved as the instruction is not set out in the brief. The District also urges as a matter of law that the verdict should be reduced by the salary of the proffered reemployment as a teacher. The issue of mitigation, absent exceptional circumstance, is one for the jury. The issue of reasonableness is implicit in mitigation. Wolf v. Missouri State Training School for Boys, 517 S.W.2d 138, 143 (Mo. banc 1974). The District’s argument is, in effect, an argument that the verdict is against the weight of the evidence. Such a determination is solely for the trial court and poses no issue for this court.
I would affirm the judgment of the trial court.