Appeal From the District Court of the United States for the Southern District of New York.
Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
On January 13, 1931, the plaintiff and defendant by their duly authorized agents entered into the following agreement in writing:
"1. Carnera agrees that he will render services as a boxer in his next contest (which contest, hereinafter called the 'First Contest,' shall be with the winner of the proposed Schmeling-Stribling contest, or, if the same is drawn, shall be with Schmeling, and shall be deemed to be a contest for the heavyweight championship title; provided, however, that, in the event of the inability of the Garden to cause Schmeling or Stribling, as the case may be, to perform the terms of his agreement with the Garden calling for such contest, the Garden shall be without further liability to Carnera, exclusively under the auspices of the Garden, in the United States of America, or the Dominion of Canada, at such time, not, however, later than midnight of September 30, 1931, as the Garden may direct.
2. The Garden shall give notice to Carnera, at least ninety (90) days before the holding of such First Contest, of the time and place at which it is to be held. In the event that rain or weather conditions or other causes over which the Garden and/or Carnera have no control compel the postponement of the aforesaid First Contest, the Garden shall designate a postponed date or a further postponed date (in no event to be later than said September 30, 1931), if required for said reasons, and Carnera thereupon and in such even will engage in such contest upon such ultimate postponed date.
3. Such First Contest shall be conducted in conformity with the rules and regulations established by the controlling Official State Athletic Commission or official authorities in the State or Province where such boxing contest shall be held, and all conditions and regulations for such contest not yet enacted or in force at the time of the execution and delivery hereof or not definitely stipulated shall be subject to the Garden's approval.
4. The Garden shall pay to Carnera for his said services in said First Contest an amount equal to twelve and one-half per cent. (12 1/2%) of the gate receiptes from all tickets sold, after deduction of State and Federal admission taxes on tickets and the fees to officials as designated by the Commission or authorities controlling. Amounts due hereunder shall be paid to Carnera in due course upon the checking of the gate receipts, but in no event later than five (5) days from and after the date of the holding of such First Contest.
5. The Garden in advertising the First Contest and in the motion pictures hereinafter referred to shall be entitled to use Carnera's name and picture.
6. The Garden shall have, subject to the provisions hereof, and in so far as Carnera is concerned, the sole and exclusive motion picture rights of said First Contest, or of any part thereof, and is hereby authorized and empowered to dispose of the same in such manner as it may deem desirable, provided, however, that Carnera shall be paid a sum equal to twelve and one-half per cent. (12 1/2%) of all moneys derived by the Garden from the disposition thereof. Carnera shall have the right to two days' notice before any such disposition, and shall have the right to acquire the same within two days thereafter, for the price then offered by others.
7. Carnera shall, upon reasonable written notice to him from the Garden, execute and deliver, or cause his manager to execute and deliver for and on his behalf, the usual form of boxer's contract required by the controlling Commission or authorities for such First Contest, and to such end hereby makes, constitutes and appoints the then President of the Garden as and for his agent and attorney-in-fact for him and in his name, to execute and deliver such usual form of boxer's contract. The execution and delivery of such usual form of boxer's contract shall not be deemed to affect, abrogate or change the terms hereof with respect to matters covered hereunder.
8.In the event that Carnera wins the First Contest, then and in such event Carnera grants an option to the Garden for his services as a boxer in his thereafter contests so long as he continues winner thereof, to be held exclusively under the auspices of the Garden, upon the same terms and conditions as herein provided, excepting the percentage applicable to such Contests shall be thirtyseven and one-half per cent. (37 1/2%) instead of twelve and one-half per cent (12 1/2%), and the opponent in such contests shall be such as may be approved of by the Garden. Such option shall continue so long as the Garden continues to arrange a contest for Carnera when Carnera shall disir such contest, but in no event closer than thirty days apart, it being understood that should the Garden not so arrange a contest, the option shall end.
9.Carnera shall not, pending the holding of the First Contest, render services as a boxer in any major boxing contest, without the written permission of the Garden in each case had and obtained. A major contest is understood to be one with Sharkey, Baer, Campolo, Godfrey, or like grade heavyweights, or heavyweights who shall have beaten any of the above subsequent to the date hereof. If in any boxing contest engaged in by Carnera prior to the holding of the First Contest, he shall lose the same, the Garden shall at its option, to be exercised by a two weeks' notice to Carnera in writing, be without further liability under the terms of this agreement to Carnera. Carnera shall not render services during the continuance of the option referred to in paragraph 8 hereof for any person, firm or corporation other than the Garden. Carnera shall, however, at all times be permitted to engage in sparring exhibitions in which no decision is rendered and in which the heavyweight championship title is not at stake, and in which Carnera boxes not more than four rounds with any one opponent.
10. The Garden shall have the right in whole or in part, at its option, to assign this agreement and the benefits subject to the obligations thereof, to any of its subsidiary or affiliated corporations, or to any person, firm or corporation of equal responsibility, and shall have the right, at its option, of causing any contests herein referred to be promoted by any such subsidiary or affiliated corporations, or by any ...