BIGGS, Circuit Judge.
Upon April 10, 1935, Madison Square Garden Corporation (hereafter referred to [925]*925as the Garden) entered into a contract with James J. Braddock which provided for a contest with Max Baer, then holder of the title of heavyweight champion of the world, and further provided in paragraph 10 of the contract as follows:
“That 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. * * * ”
Paragraph 11 of the contract provided:
“That Braddock shall not, prior to the contest referred to in paragraph 10 hereof, engage in any boxing contest or boxing exhibition, without the written consent of the Garden, except boxing exhibitions for not more than four (4) rounds and in which no decision is rendered. Such exhibition contests may be held under the auspices of others than the Garden.”
Upon July 28, 1936, within the time provided by the contract of April 10, 1935, the Garden notified Braddock that he was to fight Max Schmeling at Madison Square Garden Bowl, in the city of New York, upon the evening of September 30, 1936, and upon the following day Braddock’s manager advised the Garden that the selection of Braddock’s opponent, the date and place of meeting, were acceptable to Braddock. Thereafter, on August 12, 1936, it became apparent that Braddock had suffered a severe injury to his left hand which would render it impossible for him to engage in the fight with Schmeling upon September 30, 1936.
On August 21, 1936, Braddock and the Garden entered into a contract (Exhibit “C” of the record) wherein and whereby he contracted to fight Schmeling under the auspices of the Garden, the match to be held on either the 3d or the 10th day of June, 1937. This contract, to which Braddock was the party of the second part, provided, inter alia, as follows :
“The party of the second part hereby agrees to deposit with the party of the first part, cash, certified check, or accepted draft for the sum of $10,000 as forfeit money, to guarantee his appearance, his making the weight as above agreed, and for his performance of this contract in all other respects.
“If said party of the second part shall fail to appear or make the weight agreed upon, or if said party is not in physical condition and should fail to pass the required examination by a duly licensed Physician, then said forfeit money may, at the discretion of the Athletic Commission, be forfeited to the party of the first part (the Garden), and under these circumstances the party of the first part will pay to Max Schmeling, the other contestant in this match, or his duly authorized manager, the sum of $5,000. as liquidated damages. If for any reason, other than the failure on the part of either of the two contestants to appear, the party of the first part does not fulfill this contract, the party of the first part shall then pay to the party of the second part an amount equal to said forfeit as liquidated damages, unless this match is cancelled by mutual consent.”
A further paragraph of this contract provided:
“It is further agreed 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.”
Upon December 12, 1936, a further contract (Exhibit “E” of the record) was entered into between Braddock and the Garden in which the date of the proposed contest with Schmeling was definitely fixed for June 3, 1937, Braddock’s percentages of payment in the terms of “the gross receipts of the house” were more than doubled, but the other provisions of the contract were substantially the same as those contained in the contract of August 21, 1936, except for one further provision thereof added after the witnessing clause, as follows:
“It is understood that you (meaning Braddock) cannot participate in any bout with Joe Louis until after June 3, 1937.”
The contracts entered into by Braddock and the Garden for the contest with Schmeling provide:
[926]*926“It is understood and agreed that said contest shall be with gloves as provided in section 12, chapter 714 of the Laws of 1921, or any amendment thereto [Unconsol.Laws, § 203], and to be furnished by the party of the first part, and shall be conducted in all respects in conformity with the Laws of the State of New York and the Rules and Regulations adopted by the Athletic Commission of said State, which are hereby made a part of this agreement. * * *»
Section 193, Unconsol.Laws, chapter 912, section 3, Laws 1920, as amended, of the state of New York provides in part as follows:
.“The commission shall have and hereby is vested with the sole direction, management, control and jurisdiction over all such boxing, sparring and wrestling matches or exhibitions, professional as well as amateur, to be conducted, held or given within the state of New York, and no such professional and/or amateur boxing, sparring or wrestling matches or exhibitions shall be conducted, held or given within the state except in accordance with the provisions of this act.”
In the early part of December, 1936, rumors reached the Garden that Braddock was contemplating a breach of his contract to fight Schmeling upon June 3, 1937, and engage in a contest with Joe Louis. Upon December 12, 1936, the New York State Athletic Commission held a meeting in which the commission forbade Braddock from engaging in a bout of any length whatsoever against Joe Louis before he had defended his title against Schmeling. The commission was acting within its powers in making such order and thereby reiterating its support of the contracts entered into by Braddock for the Schmeling bout. The action of the commission must have made plain to Braddock that by entering into a contract to fight Louis, he would breach his contract with the Garden, but in our opinion, the action referred to, of the New York State Athletic Commission, has no effect upon the question of the enforcement of the negative covenant alleged to exist in the agreement between Braddock and the. Garden, and we therefore will make no further reference to the action of the commission.
£1-4] In the month of February, 1937, Braddock entered into a contract to fight Joe Louis in a fifteen-round boding contest to a decision, this contest to be held in Chicago, 111., on June 22, 1937. Now it is the contention of the Garden that Braddock, by entering into this contract to fight Louis, expressly repudiated his contract to meet Schmeling upon June 3, 1937, under the auspices of the Garden, but whether or not there was express repudiation is unimportant in our view. There was practical repudiation for the reason that a heavyweight boxer, through sheer physical limitations, cannot engage in two major contests involving the title of World’s Heavyweight Champion within nineteen days.
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BIGGS, Circuit Judge.
Upon April 10, 1935, Madison Square Garden Corporation (hereafter referred to [925]*925as the Garden) entered into a contract with James J. Braddock which provided for a contest with Max Baer, then holder of the title of heavyweight champion of the world, and further provided in paragraph 10 of the contract as follows:
“That 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. * * * ”
Paragraph 11 of the contract provided:
“That Braddock shall not, prior to the contest referred to in paragraph 10 hereof, engage in any boxing contest or boxing exhibition, without the written consent of the Garden, except boxing exhibitions for not more than four (4) rounds and in which no decision is rendered. Such exhibition contests may be held under the auspices of others than the Garden.”
Upon July 28, 1936, within the time provided by the contract of April 10, 1935, the Garden notified Braddock that he was to fight Max Schmeling at Madison Square Garden Bowl, in the city of New York, upon the evening of September 30, 1936, and upon the following day Braddock’s manager advised the Garden that the selection of Braddock’s opponent, the date and place of meeting, were acceptable to Braddock. Thereafter, on August 12, 1936, it became apparent that Braddock had suffered a severe injury to his left hand which would render it impossible for him to engage in the fight with Schmeling upon September 30, 1936.
On August 21, 1936, Braddock and the Garden entered into a contract (Exhibit “C” of the record) wherein and whereby he contracted to fight Schmeling under the auspices of the Garden, the match to be held on either the 3d or the 10th day of June, 1937. This contract, to which Braddock was the party of the second part, provided, inter alia, as follows :
“The party of the second part hereby agrees to deposit with the party of the first part, cash, certified check, or accepted draft for the sum of $10,000 as forfeit money, to guarantee his appearance, his making the weight as above agreed, and for his performance of this contract in all other respects.
“If said party of the second part shall fail to appear or make the weight agreed upon, or if said party is not in physical condition and should fail to pass the required examination by a duly licensed Physician, then said forfeit money may, at the discretion of the Athletic Commission, be forfeited to the party of the first part (the Garden), and under these circumstances the party of the first part will pay to Max Schmeling, the other contestant in this match, or his duly authorized manager, the sum of $5,000. as liquidated damages. If for any reason, other than the failure on the part of either of the two contestants to appear, the party of the first part does not fulfill this contract, the party of the first part shall then pay to the party of the second part an amount equal to said forfeit as liquidated damages, unless this match is cancelled by mutual consent.”
A further paragraph of this contract provided:
“It is further agreed 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.”
Upon December 12, 1936, a further contract (Exhibit “E” of the record) was entered into between Braddock and the Garden in which the date of the proposed contest with Schmeling was definitely fixed for June 3, 1937, Braddock’s percentages of payment in the terms of “the gross receipts of the house” were more than doubled, but the other provisions of the contract were substantially the same as those contained in the contract of August 21, 1936, except for one further provision thereof added after the witnessing clause, as follows:
“It is understood that you (meaning Braddock) cannot participate in any bout with Joe Louis until after June 3, 1937.”
The contracts entered into by Braddock and the Garden for the contest with Schmeling provide:
[926]*926“It is understood and agreed that said contest shall be with gloves as provided in section 12, chapter 714 of the Laws of 1921, or any amendment thereto [Unconsol.Laws, § 203], and to be furnished by the party of the first part, and shall be conducted in all respects in conformity with the Laws of the State of New York and the Rules and Regulations adopted by the Athletic Commission of said State, which are hereby made a part of this agreement. * * *»
Section 193, Unconsol.Laws, chapter 912, section 3, Laws 1920, as amended, of the state of New York provides in part as follows:
.“The commission shall have and hereby is vested with the sole direction, management, control and jurisdiction over all such boxing, sparring and wrestling matches or exhibitions, professional as well as amateur, to be conducted, held or given within the state of New York, and no such professional and/or amateur boxing, sparring or wrestling matches or exhibitions shall be conducted, held or given within the state except in accordance with the provisions of this act.”
In the early part of December, 1936, rumors reached the Garden that Braddock was contemplating a breach of his contract to fight Schmeling upon June 3, 1937, and engage in a contest with Joe Louis. Upon December 12, 1936, the New York State Athletic Commission held a meeting in which the commission forbade Braddock from engaging in a bout of any length whatsoever against Joe Louis before he had defended his title against Schmeling. The commission was acting within its powers in making such order and thereby reiterating its support of the contracts entered into by Braddock for the Schmeling bout. The action of the commission must have made plain to Braddock that by entering into a contract to fight Louis, he would breach his contract with the Garden, but in our opinion, the action referred to, of the New York State Athletic Commission, has no effect upon the question of the enforcement of the negative covenant alleged to exist in the agreement between Braddock and the. Garden, and we therefore will make no further reference to the action of the commission.
£1-4] In the month of February, 1937, Braddock entered into a contract to fight Joe Louis in a fifteen-round boding contest to a decision, this contest to be held in Chicago, 111., on June 22, 1937. Now it is the contention of the Garden that Braddock, by entering into this contract to fight Louis, expressly repudiated his contract to meet Schmeling upon June 3, 1937, under the auspices of the Garden, but whether or not there was express repudiation is unimportant in our view. There was practical repudiation for the reason that a heavyweight boxer, through sheer physical limitations, cannot engage in two major contests involving the title of World’s Heavyweight Champion within nineteen days. Neither can there be any doubt that Braddock now stands in breach of his contracts to fight Schmeling under the auspices of the Garden. This, however, is not the question before us. The question before us is whether or not, within any of the contracts entered into between Braddock and the Garden, a negative covenant exists which this court may enforce within the doctrines of law originally laid down in the cases of Lumley v. Wagner, 1 De-Gex, M. & G. 604, and Lumley v. Gye, 2 El. & Bl. 216, as interpreted by our own courts. We are forced reluctantly to the conclusion that no such enforceable negative covenant is now in effect. A negative covenant is contained in paragraph 11 of the contract of April 10, 1935, but this covenant, by its express language, referring to paragraph 10, prohibits Braddock from engaging in boxing contests only until he has fought a selected opponent, to be mutually agreed upon by the Garden and himself, but that the contest with the selected opponent is to take, place no later than September 30, 1936. It is the contention of the appellant that this negative covenant, despite the limitation of time referred to, is none the less carried over by necessary implication into the subsequent contracts between Braddock and the Garden. We cannot find this to be the case. The enforcement of negative covenants in contracts of personal service is based squarely upon the theory that the defendant’s services are unique and extraordinary and therefore cannot be compensated for in money damages. Lumley v. Wagner, supra; Lumley v. Gye, supra; Keith v. Kellermann (C.C.) 169 F. 196; Philadelphia Ball Club v. Lajoie, 202 Pa. 210, 51 A. 973, 58 L.R.A. 227, 90 Am.St.Rep. 627. The language of the contracts between Braddock and the Garden, following the original agreement of April 10, 1935, is en[927]*927tirely inconsistent with this well-established rule of law upon which rests the enforcement of all negative covenants. These subsequent contracts provide for the posting of a substantial fund by Braddock to be forfeited if he fails to appear, for liquidated damages by way of the division of that forfeit, and provide further that if Braddock engages in any contest wherein he is defeated so that his value as an attraction is impaired, the Garden, with the permission of the Athletic Commission, may rescind and cancel the contracts of his employment, so that, if such cancellation took place the Garden would be under no obligation to Braddock to hold a boxing contest in which Braddock is to be employed as a contestant. The recited provisions destroy the contention of the appellant. Each of the later contracts is complete unto itself and each stands alone.
The final paragraph of the contract of December 12, 1936, as heretofore set out, does contain language prohibiting Braddock from fighting Louis until after June 3, 1937. But this provision, by its limitation of date, obviously is of no assistance to the appellant in the suit at bar.
In view of the foregoing, we must answer our question in the negative. Veritably, at this time there is no negative covenant in existence.
Assuming otherwise, however, and that the covenant in question was carried into the subsequent contracts with legal effect, none the less it could not be enforced. It is settled law both in the United States and in England that there must be mutuality of remedy between parties to a contract before a negative covenant against one of them will be enforced. This doctrine of mutuality of remedy is a very simple one. It simply means that unless a right be given under the contract whereby the party not in breach may be compelled to perform his obligations, then the party in breach will not be subjected to injunction under the negative covenant. To do so would be to subject that party to undue hardship. This principle was fully expressed in Rutland Marble Co. v. Ripley, 10 Wall. 339, 359, 19 L.Ed. 955, in which Mr. Justice Strong stated:
“And it is a general principle that when, from personal incapacity, the nature of the contract, or any other cause, a contract is incapable of being enforced against one party, that party is equally incapable of eniorcmg it specifically against the other, though its execution in the latter way might in itself be free from the difficulty attending its execution in the former. Fry on Specific Performance, § 286.”
No further authority need be quoted.
Braddock cannot at this time compel the Garden to make use of his services as a boxer because the obligations of the Garden to Braddock expired upon June 3, 1937, by the terms of his last contract of employment. There is therefore no mutuality of remedy and therefore this court, even assuming the existence of a negative covenant, could not as a matter of law enjoin Braddock from engaging in the contest with Louis upon June 22, 1937, or in any other boxing contest.
It has been well stated that upon an application for a preliminary injunction to doubt is to deny. Upon this record we are clear that the negative covenant cannot be enforced as a matter of law and therefore it is all the more apparent that the learned trial judge was correct in his decision to deny the preliminary injunction which the appellant seeks. Lare v. Harper & Brothers (C.C.A.) 86 F. 481; Miller v. Morley Finishing Mach. Co. (C.C.A.) 87 F. 621.
The decision of the court below is affirmed.