#### Moha, Appellant, vs. Hudson Boxing Club, Respondent.

*November 16*

December *5, 1916.*

*Contracts: Performance: Boxing contest: Foul blow.*

One who contracted to box ten rounds under certain rules, but in the second round, in violation of those rules, struck a foul blow which disabled his opponent and thus made substantial performance of the contract impossible, cannot recover the contract price of his services, even though the violation of the rules was not deliberate.

Appeal from a judgment of tbe circuit court for St. Croix county: Geoege ThompsoN, Circuit Judge.

*Affirmed.*

Plaintiff is a professional boxer and sues tbe defendant to recover twenty-two and one-balf per cent, of tbe gross receipts of a boxing contest beld under tbe management of tbe club December 4, 1914, at Hudson, Wisconsin. Tbe contract was in writing and provided in substance that tbe plaintiff should box Mike Gibbons of St. Paul ten rounds “to a no decision” at tbe defendant’s boxing arena, receiving as consideration therefor twenty-two and one-balf per cent, of tbe gross receipts together with certain transportation and hotel expenses, be to deposit with a named stakeholder $100 to guarantee that he would make tbe weight specified in tbe contract, which sum, in case of bis failure to appear or enter tbe contest, was to belong to tbe defendant; that tbe revised Queensbury rules, as interpreted by tbe referee and in compliance with tbe laws of this state and tbe rules of tbe state athletic commission, should govern tbe contest; that tbe referee should be George Duffy of Milwaukee; .that if tbe referee should decide at any time that tbe plaintiff did not enter tbe contest in good faith, or if be discover bad faith on tbe part of either of tbe contestants, be may stop tbe contest and tbe defendant should not pay to either contestant any part of their compensation, unless tbe referee believes that tbe other contestant was not a party to tbe fraud, in which ease be may award to such inno*426cent party such sum as he deems just; that the referee’s decision shall be final as to fouls and as to frauds, and as to the amount he may award in case of frauds.

It appeared on the trial that the contest began, and that during the second round the referee decided that the plaintiff had struck a foul blow, *i. e.*a blow below the belt, and stopped the contest. Neither side introduced in evidence the revised Queensbury rules, nor the rules of the state athletic commission, but the referee testified that the rules prohibit the striking of a foul blow and that he stopped the contest because the other man was disabled by the foul blow. There was some testimony by spectators to the effect that the referee decided that the plaintiff was disqualified for deliberate fouling, but the referee denied this, and the jury found in answer to the single question submitted to them that the referee did not decide and announce that the plaintiff was disqualified for a deliberate foul. The plaintiff attempted to prove by the referee that, in case a contest of this kind is stopped at any time, even as early as the second round, by one of the boxers being knocked out or being disabled by an accidental foul, it was customary among the boxing profession to consider it a contest notwithstanding that fact, but the testimony was not admitted. The trial court held that the plaintiff had failed to perform his contract and hence could not recover. From this judgment plaintiff appealed.

For the appellant there was a brief by *Iiannan, Johnson & Goldschmidt,*and oral argument by *William F. Hannan.*

*Spencer Haven,*for the respondent.

WiNslow, C. J.

Plaintiff sues to recover the contract price of his professional services. In order to succeed he must show at least substantial performance of his contract. It is certain that there has been none here. He contracted to box ten rounds under certain rules. At the outset of the contest, in the middle of the second round, he violated one of *427the rules and as a result thereof disabled his opponent and thus by his own act made substantial performance impossible. Whether this act was deliberate or not cuts no figure. It was an act which he had contracted not to do, and it prevented performance. *Jennings v. Lyons,*39 Wis. 553. It does not seem necessary to consider other questions; the considerations suggested are decisive.

*By the Gourt.*— Judgment affirmed.