The opinion of the court goes upon the proposition that the statements in the teaching contracts of the relators that after the year covered by them "no married woman teacher will be employed. This applies to [each of the relators] also when contract expires, " constituted a contractual stipulation on the part of the school district that the relators would not be again employed and deprived the relators of status under the tenure law thereafter enacted.
I am unable to perceive that the statement constitutes a contractual agreement or involves any contractual element. It amounts only to a notice to the relators that because they were married women they would not be re-employed. As the law stood when the contracts were signed, the board was entirely free not to re-employ the relators at their termination. The statement conferred no right upon the district. The district already had the right not to re-employ the relators or continue their employment at the end of their contracts. It gave nothing and it took away nothing.
"A contract is a promise . . . for the breach of which the law gives a remedy, or the performance of which the law in *Page 625 some way recognizes as a duty." Restatement, Contracts, § 1. The district was under no duty to again employ the relators. By not re-employing them it would breach no obligation or duty. The law gave the relators no right of action and therefore no remedy if they were not re-employed. "A contract is a promise, or set of promises, to which the law attaches legal obligation." 1 Williston, Contracts, § 1. The instant contract attached no legal obligation to the district or to the relators respecting re-employment. "Contract, both in its origin and its analysis, is a form of [legal] obligation." 1 Page, Contracts, § 37. "In order to amount to an obligation the legal duty must be to perform or to forbear a definite act." 1 Page, Contracts, § 39. The instant contract created no legal obligation on the part of either party, either of performance or forbearance in respect of re-employment or continuance in employment. The district having no obligation or duty to re-employ the relators, non-re-employment of them was not a contractual matter. It was not a subject of contract. Manifestly, if A has no obligation or duty to employ B or continue him in service he gets nothing by telling B he will not employ him or continue him in employment.
The same result follows from looking at the matter from the standpoint of the relators. Assume, as the trial court did, that the statement quoted implies a promise on the part of the relators that they would not again ask for re-employment. That promise conferred nothing on the district. Whether the relators kept the promise, or whether they did not, the district would not have to re-employ them. By such promise the relators got nothing and the district got nothing. As neither received anything no consideration was given or received. And a consideration is essential to a contract.
It is contended by respondents that the relators by their implied promise not to ask for re-employment waived their rights under the tenure law. A waiver is the intentional relinquishment of a known right. The relators when they *Page 626 signed their contracts had no right to continue as teachers of the district after the expiration of their contracts. There can be no knowledge of rights when there is no right, — no knowledge of a right when no right exists. No rights under the tenure law existed. Tenure rights therefore were not a subject of waiver. Rights under a tenure law subsequently enacted were not in the minds of the parties. Had the tenure law been in existence when the contracts were made, and the relators had not yet taught long enough to have acquired those rights, but would acquire them by another year's teaching, and they had been employed the coming year under a promise not to assert any claim to tenure rights if they were so employed, we would have a different question. And we would have a different question, if the parties had known of the pending tenure law, and the instant contract had been made on the promise of the relators that they would make no claim under it if it were passed. But no such question is here involved.
I think the record shows that the relators were not given such a hearing as sec. 39.40 (3), Stats., contemplates as the basis for discharge for incompetency. I also, think that the facts as presented at the hearing given were insufficient to support a finding of incompetency by the board. So believing, I can find no basis for concurring with the decision of the court and therefore dissent. *Page 627