
    George Reynolds, Resp’t, v. The Manhattan Athletic Club, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed February 6, 1893.)
    
    1. Contract — Performance.
    Readiness to perform a contract is shown only by some act or word expressive of such disposition.
    2. Same — Athletic sports — Referee’s decision.
    Where the plaintiff, a boxer, entered into a contract to box ten round® for a certain sum, part to the winner and part to the loser, certain rules tq> govern, and the referee’s decision to he final, one of the rules being that no part should go to the loser if he “ quits,” Held, that the court could not disturb the referee’s decision that plaintiff “quit" and was not “ knocked out.”
    Appeal from a judgment rendered in the district court of the city of’ New York for the second judicial district.
    
      George W. Carr, for app’lt; Hiram Ketchum, for resp’t.
   Bookstaver, J.

Reynolds, a professional boxer, brought this action upon an oral complaint to recover ninety-nine dollars for breach of a contract signed by him only, which was not offered in evidence, but the contents of which are testified to without objection, and which was substantially as follows : Reynolds agreed to box A. L. O’Brien at defendant’s club house on June 22,1892, ten rounds for $300, $200 to the winner and $100 to the loser, Reynolds to put up $50 forfeit in Dominick McCaffrey’s hands for appearance and weighing in. The answer was a general denial. Reynolds put up his fifty dollars as provided for in the contract, appeared and weighed in, and began the boxing contest, but boxed only two out of ten rounds. He himself testifies that he stopped because he was fouled and hurt, and although he says he told his seconds he was ready and willing to stay the ten rounds, he does not testify that he so told McCaffrey, the referee, or any one else than his seconds. The testimony on both sides was that the referee’s decision in boxing contests is final as to all questions. Defendant’s testimony goes to prove that the contest was under what is known as the Marquis of Queensberry’s rules, although they were not put in evidence, and also under the club rules, which defendant’s witnesses said were communicated to the plaintiff before the match, and this he does not deny. It was testified that under both of these rules there is an interval of one minute each round, and that if a contestant is knocked down during a round and remains down for ten seconds, he is counted out of the contest, and in this event gets second money; but if a contestant makes a pretense of being knocked down and out, or “ quits,” as it was called in technical sporting parlance, he would not even be entitled to second money; and that it was the province of the referee to decide whether a contestant quits, or, as it is otherwise called, “fakes,” or is fairly knocked out, and his decision on this question is also final.-

The plaintiff admitted in his testimony on the trial that the referee determines the fight and the money. The referee did determine that O’Brien, the plaintiff’s opponent, was the winner, and that Reynolds was'not entitled to any money, as he had quit, that is, had wilfully evaded further sparring.

If this contest was to have been had solely under the terms of the contract plaintiff signed, then he cannot recover, and it was error to so decide, for he agreed to box ten rounds, and it is admitted he boxed only two. He seeks to avoid this apparent breach of contract by now claiming that he was ready and willing to go on with the remaining rounds, but the testimony is overwhelmingly against this contention. The only testimony to support his then alleged willingness and readiness to perform the contract consists of his and his seconds’ assertion at the trial that he was then ready and willing to continue the contest. Neither of them state that by word or act such readiness and willingness was indicated. What they say amounts to nothing more than an expression of plaintiff’s mental state in this -regard. They both admit that neither of them told the referee, or any one of the officers of the defendant, that plaintiff was ready to continue. Readiness to perform a contract is shown only by some act or word expressive of such disposition. Now, it is apparent that plaintiff did not perform the contract according to its terms, nor did he offer to do so. It is a fair and necessary presumption that such a contest would not be had except under some rules, and the uncontradicted testimony is that these rules were communicated to the plaintiff before the contest began, and he knew that the decision of the referee upon the question of quitting, or being fairly knocked out, was for the referee to determine, and was final; his determination being that it was a willful quitting, therefore, is binding upon him, and he cannot recover in this action. The only possible theory upon which the justice could have decided in plaintiff's favor is that he believed plaintiff did his best and was fairly knocked out. To this there are two insuperable objections. " If he was fairly knocked out, which means rendered incapable of further contest, then his statements are irreconcilable.

It is not contradicted that on the night in question he admitted he was knocked out, therefore his present statement that he was ready and willing must be untrue. And again, what the justice believes as to whether plaintiff was fairly knocked out was inconsequential, as the parties had agreed to leave the disposition of that question to the referee, he, and not the justice, was to decide whether the plaintiff was fairly overcome or quit, and he decided against the plaintiff. Whenever defendant’s witnesses speak of plaintiff being entitled to the money if fairly knocked out, they must mean if the referee were of the opinion that he was fairly knocked out, otherwise the disposition of the question would rest with the contestant, or could never be decided where a dispute occurred except by a court. The parties under the agreement between them made the referee the sole arbiter of this question.

The judgment should, therefore, be reversed, with costs of this appeal to the appellant.

Bischoff, J., concurs.  