(dissenting).
The basic question involved in this case is whether at the time this injunction bill was filed Braddock was under contract not to fight his now proposed heavyweight championship fight with Louis at Chicago on June 22d. The determination of that question depends on the meaning, force, •and effect of written agreements signed by Braddock and the Madison Square Garden, the plaintiff.
Now, certain elements aid in ascertaining what written agreements mean. A celebrated British Judge said: “Tell me what the parties have done and I will tell you what their writing means.” So also the object the parties had in view when they signed the writing is a key to its meaning.
What Braddock had in view is tellingly expressed by him in his own words: “I will not fight again until June, 1936. Then I will stake my all against the foremost contender under the auspices of Madison Square Garden. I believe in loyalty. *928* * * The Garden took me off the bread line by giving me three fights and then the Baer engagement. Naturally I will stick to the Garden.”
Applying this commendable purpose to the facts of the case, it appears that Braddock was a professional boxer. He was nationally unknown. Madison Square Garden took him up and secured for him a contest with Baer, a world’s heavyweight fighter, and on April 10th, 1935, entered into a written contract, which I term the basic contract, the pregnant provisions of which are as follows:
“That the Garden agrees to conduct and hold or cause to be conducted and held, and Braddock agrees to render his services as boxer in a fifteen round boxing contest with Max Baer for the Heavyweight Championship of the world, on or before the 30th day of June, 1935.”
That contest resulted in Braddock defeating Baer and himself becoming a world’s champion heavyweight. This initial victory provided for the subsequent action of the parties in arranging details for, as stated therein, Braddock’s “first boxing contest thereafter, which contest shall be for the heavyweight championship of the world.” The provision was as follows:
“In the event Braddock is the winner of the' boxing contest between him and the said Max Baer and Braddock shall become the Heavyweight Champion of the World, then the Garden shall employ Braddock and Braddock agrees that he will render services as a boxer in his first boxing contest thereafter (which contest shall be for the Heavyweight Championship of the World). Such contest shall be held in the United States of America under the auspices of the Garden, not later than September 30,. 1936 with an opponent to be mutually agreed upon. In the event that the parties hereto cannot agree upon Braddock’s opponent for such contest, then and in that event such opponent shall be designated by the New York State Athletic Commission. The time and place for such contest shall be designated by the Garden. The Garden shall give Braddock not less than sixty (60) days prior written notice of the time, place and opponent designated for such contest. Braddock shall be paid for his services in such contest, a sum equal to (a) forty-two and one-half per cent (42%%) of the gross receipts from tickets sold, less Federal, State and/or Municipal admission taxes (if any) and compensation for .ring officials, and (b) forty-two and one-half per cent (42%%) of the amount or amounts received by the Garden upon the sale or other disposition of motion pictures, sound or television pictures and radio or television broadcast rights, for such contest.”
In pursuance of its agreement to give ' “not less than sixty (60) days prior written notice of the time, place and opponent designated for such contest,” Garden selected Max Schmeling as Braddock’s opponent, and the contest which was set for September 30, 1936, having been postponed to June 3, 1937, on account of an injury to Braddock’s hand, Garden and Braddock, on August 21, 1936, signed an agreement for the June, 1937, fight at Garden’s ■ club house between Braddock and Schmeling, which, as the agreement provides, “shall be conducted in all respects in conformity with * * * ^e rules and regulations adopted by the Athletic Commission of the State, which are hereby made a part of this agreement.”
On August 21, 1936, Garden and Schmeling entered into a contract of the same import and in which the latter agreed to fight Braddock at the same time and place.
It further appears that on December 12, 1936, Garden and Braddock entered into an additional contract which recited the foregoing agreements between them, and stipulated that “If said party of the second part enters into another contest prior to the one herein contracted for and is defeated, or in any' other way does anything calculated to lessen his present value as an attraction, the party of the first part shall have the option to rescind and cancel this contract without further liability hereunder, provided such cancellation is approved by the New York State Athletic Commission,” and which contains this significant and restrictive stipulation:
“It'is understood that you cannot participate in any bout with Joe Louis until after June 3rd, 1937.”
From the foregoing facts and writings, it is clear that the basic contract, so far as the time, place, and agreement of Braddock to fight are concerned, has not been canceled by the subsequent agreements and the same is still in force. That agreement bound Braddock to do two things, first, to take part in the June contest at Madison’s club. In that regard Braddock states in court, by counsel, he will not do so. The *929other is his restrictive agreement not to enter into any contest before he fights Schmeling, or to use his own restrictive words, “It is understood that you cannot participate in any bout with Joe Louis until after June 3, 1937.” This violation of his contract and of the plaintiff’s contract rights would ensue if he fights, as he proposes to do, at Chicago. It is also to be noted that all parties concerned appeared before the New York Athletic Commission on December 12, 1936, and, after hearing, that body held:
“The Commission forbids Braddock from engaging in a bout of any length whatsoever against Joe Louis before he defends his title against Schmeling.”
It is now contended that this court of equity is powerless to prevent any such violation of the plaintiff’s contract rights. I cannot agree with such contention. Finding as 1 do that every element of equity and fair dealing is with the plaintiff and that the defendant’s contract-breaking conduct is unjust, that there is no equity on his part, and that he comes into this court in the position of lawlessness and unclean hands, this court is justified in reversing the court below and remanding the record with instructions to enter an injunction restraining the defendant from this violation of plaintiff’s contract rights and his corresponding legal obligation and duty.
Moreover, it is apparent that Braddock contracted for services personal and unique; that he is preventing Garden from carrying out its contract with Schmeling ■ — a contract the making of which was with Braddock’s approval; that apart from all questions of money damage, Braddock is undermining and lessening the established good will of Garden in destroying its ability to promote worthy sports and manly contests, and that the destruction of Garden’s good will cannot be estimated in money damages; that Braddock’s continuing to be seduced from the path of contract duty by sordid money making promoters, has made it, and will make it, impossible for ball players, boxers, artists, authors, singers, and movie folk and other persons rendering unique and personal service, to enlist the needed aid of helpful promoters, if Braddock’s contract is but a scrap of paper and binds no one but the promoter.
In so holding, I find myself in accord with justifying authorities: Keith v. Kellermann (C.C.) 169 F. 196; Shubert Theatrical Co. v. Rath (C.C.A.) 271 F. 827, 20 A.L.R. 846; Associated Newspapers v. Phillips (C.C.A.) 294 F. 845; Madison Square Garden Corp. v. Camera (C.C.A.) 52 F.(2d) 47, and cases cited.