(dissenting).
While I concur in the result reached in the majority opinion with respect to Count II of the defendant’s counterclaim I respectfully dissent with the result reached with respect to the claim of the plaintiff and Count I of the defendant’s counterclaim.
The parties agree that there was a sabbatical leave agreement. The point at issue is whether the document denominated “Sabbatical Leave Program” is a part of this agreement. The majority conclude that it is; I conclude that it is not.
Plaintiff, which instituted this litigation, sought to recover $2,805.95 paid to the defendant as sabbatical leave pay. Defendant in Count I of his counterclaim sought to recover of the plaintiff some $3,928.30, the balance he alleges was due him of his sabbatical leave pay. Plaintiff’s claim is brought on the grounds that the defendant failed to comply with the requirement of Paragraph IX of the Sabbatical Leave Program in that he- did not complete at least 24 semester units of work during a sabbatical year, not less than 8 semester units of which shall be completed during each semester of such leave. Defendant, for his counterclaim, alleges that he did comply with all of the sabbatical leave requirements and the plaintiff in defense alleges (1) the failure of the defendant to satisfy the same 8 semester unit requirement upon which it bases its claim for reimbursement and (2) that the defendant deviated from the sabbatical leave program set out in his application for sabbatical leave without first explaining, justifying or notifying the plaintiff of said deviation and thus abandoned his agreement and his entitlement to sabbatical leave pay. The basis for this latter defense is likewise founded upon a provision in Paragraph IX of the Sabbatical Leave Program that courses to be taken on sabbatical leave shall be approved by the Superintendent of the plaintiff school district.
Where the majority opinion errs is in its conclusion that the sabbatical leave agreement between the parties incorporated the “Sabbatical Leave Program” requisites relied upon by the plaintiff in its claim for reimbursement and in its defense against the defendant’s counterclaim, Count I.
It is not for either the trial court or for this court to make a contract for the parties; we merely take the contract as it is and determine the rights and liabilities thereunder.
The evidence in this case is uncontra-dicted that the plaintiff gave to each of *514the teachers in its employ a Teacher Handbook consisting of some 41 pages of detailed explanation of the philosophy of the school district, statement of its objectives, a code of ethics, and chapters on School Organization, Board of Education, Administration, Personnel, School Procedures, Teacher Responsibilities, Policies Relating to Teachers, Professional Negotiations Agreement, and Grievance Procedure. Included in this Teacher Handbook is the following, at p. 28:
“3. Sabbatical Leave
Teachers may request a sabbatical leave after having taught in Lindbergh School District for six years. The request must be made to the Board of Education in writing. One-half the teacher’s salary for the sabbatical leave year will be paid to the teacher during his leave. The teacher must return for one full year after the sabbatical leave to Lindbergh School District or refund the money paid during the leave time. Payments will follow the regular payroll schedule. Movement on the salary schedule will be made as if the staff member were on regular duty. Applications must be made by February 1. Efforts will be made to provide the teacher on sabbatical leave an identical position when he returns. If this is not possible, the teacher will be placed in a position as similar to his previous one as possible. Only two per cent of a staff at any given level (elementary, middle, high) will be permitted to be on sabbatical leave at the same time.” (Emphasis supplied).
The Teacher Handbook further provides that teacher contracts are for a 10 month period and annual salaries for teachers shall be paid in 12 increments on the 20th of each month.
In reliance on this information furnished in his Teacher Handbook the defendant made application to the plaintiff on September 27, 1970, for a sabbatical leave during the 1971-1972 “school year” so that he might work on an advanced degree — Ph. D.— in geophysics or, in the alternative, in science education. In his application the defendant stated that he was “trying for a graduate assistantship at Washington University, St. Louis University and the University of Missouri” and if for some reason he could not receive such an appointment at one of the aforesaid institutions of learning he would then “matriculate for the Ph.D. in Science Education at St. Louis University.” The application clearly stated that this was a “planned” program. No action was taken by the Board on defendant’s application and on February 10, 1971, the Superintendent advised the defendant, by letter, that his application had not been approved by the Board of Education at its regular meeting because the defendant had failed to comply with “all state requirements for the current school year.” (The requirement referred to in this letter was the medical certificate required annually by § 168.131 RSMo 1959, V.A.M.S.). The defendant complied with this requirement and resubmitted his prior application for sabbatical leave by a letter of March 8, 1971. The Board entertained the application of the defendant and the Superintendent advised him by letter of March 10, 1971, that the Board had approved his application for sabbatical leave and requested that prior to the end of the school term the defendant stop by “our office to review the leave provisions and make necessary arrangements for salary payments, withholding and retirement.”
The uncontradicted evidence is that the “Sabbatical Leave Program” (hereinafter referred to as “the Program”) is a document of some several pages consisting of 9 paragraphs setting out in detail the qualifications of those eligible for sabbatical leave, the purpose of sabbatical leave, its duration, remuneration for teachers on sabbatical leave, the effect of sabbatical leave on salary and retirement, the condition of sabbatical leave contract, the procedure for application, the criteria for selection, and specific requirements for sabbatical leave for improving instruction. It is *515also uncontradicted that this Program was retained by the Superintendent in his office.
For the reasons aforesaid I cannot concur in the finding of the majority that: “It is clear that there was a sabbatical leave program at the school district, and that there were certain procedures and requirements pertaining thereto” when they proceed to impose upon the defendant the requirements of the document denominated “Sabbatical Leave Program” which were not set out in the Teacher Handbook nor even referred to therein. Our difference is fundamental.
As I view this evidence, the sabbatical leave agreement between the parties consists of the application of the defendant together with the information imparted to him in the Teacher Handbook and the acceptance, unqualifiedly, of his application by the Board of Education. I would hold that the defendant was not bound by any of the requirements of the Program, including Paragraph IX, which the majority holds he breached, because he had neither actual nor constructive knowledge of these requirements.
The Superintendent testified that the Program was retained in his office. He also testified that both he and the Board of Education “assumed” that anyone applying for sabbatical leave knew of the Program and its requirements. Nevertheless, except for the Teacher Handbook, there was no evidence offered by the plaintiff in support of its position that the Program had been promulgated among the teachers of the school district, and nowhere in the Teacher Handbook is there any reference, direct or indirect, that there is such a document containing provisions for those granted sabbatical leave. There' was no evidence that the Program was distributed to teachers of the district nor that it was posted in places where teachers congregate. Nor was there any evidence that the Program was discussed in teacher meetings in the district. The defendant relied on the information furnished in the Teacher Handbook and I conclude that in the absence of evidence that he had knowledge that the document setting out the requirements relied upon by the plaintiff in support of its position that he breached his sabbatical leave agreement with the plaintiff he had every right to do so.
The defendant denied any knowledge of the Program and its requirements. His explanation for not complying with the request of the Superintendent that he drop by the office and discuss the leave provisions is that he understood the leave provisions referred to in the letter of March 10, 1971, to refer to those with respect to the arrangements for salary, withholding and retirement payments while on sabbatical leave, and he did tend to those. This explanation is not incredible, particularly in the light of the circumstances and the failure of the plaintiff to make it clear that there were requirements on sabbatical leave in addition to those set out in the Teacher Handbook.
If, as the majority holds, the defendant was burdened with the Program requirements, I would hold that they were waived. Despite the fact that the defendant had not complied with the Superintendent’s request to stop by the office and discuss the leave provisions, he was permitted to enter upon his sabbatical leave to his detriment. His application was granted without qualification; no copy of the Program was sent to him at any time prior to the filing of this lawsuit in August, 1972, when it was attached to the plaintiff’s petition for reimbursement as an exhibit, nor was he ever directed to acquaint himself with its contents. The school term commenced in September, 1971, and the Superintendent knew that the defendant was not engaged in his teaching duties in the school district at that time. The evidence is that teachers in the district contract for a 10 month period and are paid their “annual salary” in 12 monthly increments on the 20th of each month. The Superintendent knew that the defendant was being paid one-half his annual salary while on sabbatical leave rather than his full salary. He also knew that he *516had not, as the Program requires, approved the courses the defendant would take during the first semester of his sabbatical leave. He sat idly by until December 29, 1971, when he inquired by letter where the defendant was enrolled in a university or college. Even at that late date he did not mention that the defendant might be in violation of the “8 semester unit” provision of the Program. He did not even mention the Program in this letter of inquiry. When the defendant replied to this letter the Superintendent made inquiry at Princeton University and Antioch College to verify the information furnished him by the defendant. Even there the Superintendent contributed to the misinformation furnished him by Princeton University when his inquiry was limited to the defendant’s attendance there during the Fall Term, 1971. The defendant had not told him that he was enrolled at Princeton during that Term. Nor did he then attempt to arrange for a conference with the defendant to determine if there was some other information he could forward to the Registrar at Princeton to aid him in verifying defendant’s attendance there as the Registrar had suggested. Displaying a high degree of administrative ineptitude, the Superintendent firedoff a scurrilous missive to the defendant accusing him of misrepresentation and falsification in his application for sabbatical leave, in his report of attendance, and of accepting money under false pretenses. This letter was written on February 18, 1972, while the defendant’s application for admission to the Union Graduate School at Antioch College was still pending, and by coincidence it was by letter of February 21, 1972, that the defendant was advised that the Admissions Committee of that school had met and decided to deny him entry in the graduate course which would have been in the field of his specialization as stated in his application for sabbatical leave. A mite of professional courtesy would lead me to conclude that had the Superintendent summoned the defendant to his office on February 18, 1972, for a discussion of the discrepancies in his application for sabbatical leave, the lack of verification by the two schools defendant had said he had either attended or was to attend, would have resolved these problems for all concerned and perhaps the defendant could have still carried out the purpose for which he was granted sabbatical leave.
The gist of the plaintiff’s contention that the defendant breached his sabbatical leave agreement is partially dependent upon the requirement of the Program that at least 8 semester units be completed during the first semester of sabbatical leave.1 It refuses to credit the defendant with the 6 “equivalent hours” earned at the field course jointly sponsored by Princeton University and the National Science Foundation on the grounds (1) that these hours were not acquired during the sabbatical year, which it contends, through the Superintendent, comprises the period between September, 1971, and June, 1972 — the “school year” — and (2) such hours, being “equivalent hours” are not creditable for the purpose of sabbatical leave.
It is apparent that even if defendant were credited with these 6 “equivalent hours” he would not satisfy the 8 semester units per semester required by the Program. However, the weakness in the position of the plaintiff is that nowhere in either the Teacher Handbook nor in the Program is the term “sabbatical leave year” defined. In fact, Paragraph III of the Program which is concerned with the duration of the sabbatical leave states: “A Sabbatical Year Leave for improving instruction may be granted for one year or one semester.” (Emphasis supplied). There is no evidence in this record to support a construction of the term as other than a calendar year except for that of the Superintendent. It occurs to me that in the face of the provision in the Teacher *517Handbook that the annual salary received by a teacher is paid in 12 increments, that in the absence of any evidence to the contrary, we may infer that sabbatical leave pay at one-half the regular pay scale would likewise be paid over a 12 month period and the teacher ought then to have that same period of time within which to acquire the 24 hours of credit in the absence of actual or constructive knowledge to the contrary.
Nor is there anything in the Teacher Handbook or the Program which states that the “equivalent hours” awarded the defendant will not satisfy the sabbatical leave requirements. The defendant testified that he had in the past been given credit for National Science Foundation courses taken at various colleges and universities for the purpose of salary increments. The technical distinction made by the Superintendent — whether a student is enrolled in the academic program of the school awarding the credits — is not even mentioned in either the Teacher Handbook or the Program. Whether such courses are creditable would be a matter for determination by the college or university awarding the Ph.D. degree, not this plaintiff in the absence of express notification of that fact. Had the Superintendent insisted that the defendant obtain approval of his course at Red Lodge, Montana, prior to enrolling there and expending his monies therefor the plaintiffs position would have more validity. The difficulty with the plaintiff’s position as I view it is that it presumed too much, permitted the defendant to expend time and money in enrolling in the course at Red Lodge, Montana, and jumped to conclusions without affording the defendant an opportunity to explain the difficulties he had experienced in attempting to carry out his planned course of study and, without affording him the due process rights guaranteed to him by the Teacher Tenure Act of this state, accused him of criminal acts and terminated his permanent teacher contract illegally. By his letter of February 18, 1972, the Superintendent for the plaintiff unilaterally rescinded the sabbatical leave agreement between the parties and left the defendant with the customary election of remedies available in that situation.
For the reasons aforesaid I would affirm the judgment of the trial court insofar as it denies recovery to the plaintiff of the $2,805.95 paid to the defendant as and for sabbatical leave up to and including January 20, 1972.
With respect to the defendant’s counterclaim, Count I, for the balance of his sabbatical leave pay I conclude that since the defendant deviated from his planned program of study approved by the Board of Education when he made application for admission to the graduate school of Southern Illinois University-Edwardsville on March 21, 1972, for courses in Education Counselling, he is not entitled to recover sabbatical leave pay from that date forward.
The record supports a finding that throughout the period between the conclusion of the 1970-1971 school year in June, 1971, and February 21, 1972, the defendant was attempting to pursue a course of study in his field of specialization and working towards a Ph.D. degree as he stated he planned to do in his application for sabbatical leave. What is of concern to both the majority and to me is that between August, 1971, when he completed the course at Red Lodge, Montana, and March 27, 1972, when he commenced attending classes again at Southern Illinois University-Ed-wardsville, he accepted his sabbatical pay from September to January without being enrolled in any university or college. Nevertheless, he had an application on file with the Union Graduate School of Antioch College from February 1, 1971, and so far as he knew he had until the following September, 1972, to acquire the 24 semester hours of graduate study required 2 prior to his return to the plaintiff school district in *518fulfillment of the requirement set out in the Teacher Handbook that any teacher granted sabbatical leave must, upon completion, return to the district and teach there for one year. The plaintiff offered no evidence that the defendant could not have complied with the 24 semester unit requirement had it not rescinded the sabbatical leave agreement unilaterally. The defendant did present himself at his normal place of employment at the beginning of the 1972-1973 school year ready and able to resume his teaching duties but he was denied the opportunity to fulfill his obligation under the agreement and his permanent teacher contract.
For the foregoing reasons I would reverse and remand the judgment of the trial court with respect to Count I of the defendant’s counterclaim with directions to hear evidence to determine the amount of sabbatical leave pay due and owing defendant between January 20, 1972, and March 20, 1972, and then enter a judgment for the defendant in that amount plus interest thereon at the rate of 6% per annum on Count I of his counterclaim.
. Plaintiff, through its Superintendent, makes no issue of the fact that the defendant was not enrolled at any one of the universities mentioned in his application. The Superintendent testified that enrollment at the Union Graduate School, Antioch College, would have been satisfactory for sabbatical leave purposes.
. Defendant testified that 24 hours was considered the normal academic year’s work in graduate school. He did not obtain this knowledge from either the Teacher Handbook nor the Program; he knew it from prior experience in graduate schools.