Opinion
Docket No. 11605.
September 24, 1941.
APPEAL from a judgment of the Superior Court of the City and County of San Francisco. Franklin A. Griffin, Judge. Affirmed.
Action on surety bond. Judgment of nonsuit affirmed.
Robert E. Hatch, Earl Warren, Attorney General, and F. Walter French, Deputy Attorney General, for Appellants.
Charles V. Barfield and Henry W. Schaldach for Respondent.
This is an action to recover against a surety on a bond. The defendant bonding company moved for a nonsuit, and the motion was granted. From the order made in that behalf plaintiff appeals.
The bond is one which the State Athletic Commission requires to be given for the benefit of persons participating in boxing contests. The commission therefore is a nominal party plaintiff. Its coplaintiff, M.H. Myers Co., is the assignee of a boxer named Gan and Sidney Wolfe, his manager. One of the grounds upon which the nonsuit was granted was that the alleged breach on the part of the principal for which plaintiffs sought to hold the surety liable was not covered by the terms of the bond. The trial court's ruling should be sustained.
The facts out of which the controversy arose are these: Leo Levitt, the principal named in the bond, was a promoter of boxing contests doing business under the name "East Bay Athletic Club." On November 9, 1938, he entered into a contract with Gan and his manager to stage a fight between Gan and another fighter known as "Little Dado" in Oakland on November 30, 1938. At the same time the parties entered into a second contract calling for a return match between the same fighters, to be held on March 29, 1939, in which contract Levitt agreed that in the event he did not produce "Little Dado" for the return match he would pay Gan and Wolfe $2500. The second contract was executed on November 9, 1938, but it was post-dated March 9, 1939, and it contained this provision: "It is understood and agreed that Benjamin Gan will not engage in any other boxing contest or exhibition at any place in the world until he has performed this contract. This bout is for the fly weight championship of the world." The first contest was held as scheduled on the night of November 30, 1938; but thereafter Gan, under Wolfe's management, engaged in three other contests, each with a different fighter. The first took place on December 19, 1938, the second on January 2, 1939, and the third on March 3, 1939, in which latter fight Gan was the victim of a "technical knockout." Consequently, shortly afterwards Levitt cancelled the contest to be held in Oakland on March 29, 1939, and so notified Gan and Wolfe. Because of the cancellation of said contest plaintiffs sought to hold the surety liable on the bond.
[1] However, the bond does not cover liability of the principal for damages for breach of contract to hold a contest, but is limited to the payment of boxers for services performed in a contest. This is apparent not only from the terms of the bond itself, but also from the statutory provisions regulating contests and the rules and regulations promulgated by the commission pursuant to which promoters are required to furnish bonds. In this respect section 11 (h) of the Boxing and Wrestling Act expressly prohibits the payment of any contestant before he has performed in a contest (Act 6129, Deering's General Laws; Stats. 1925, p. lxxxix). Rule 19 of the State Athletic Commission provides: "Every club making application for a professional boxing or wrestling license must furnish a surety bond to the State Athletic Commission for 70 per cent of the capacity of the house. This bond is to guarantee payment of boxers, wrestlers, timekeeper, announcer, club physician and referee, exclusively." And Rule 139 (a) provides that "all payment of purses shall be made immediately after the contest or exhibition." The bond in question recites: "Whereas, under the rules promulgated by the Obligee, payment to the persons performing in said boxing, sparring and wrestling contests, matches and exhibitions cannot be made until after said contests, matches and exhibitions, and must be made afterwards in accordance with the agreement covering such compensation made between the Principal and the Performer, for each contest, match and exhibition, in accordance with a schedule filed with the Obligee before the date set for said contests, match or exhibition. . . ." And the condition of the bond is: ". . . if the said principal shall well and truly pay or cause to be paid to each and all persons participating in any boxing, sparring and wrestling contests, matches and exhibitions given by the Principal under the license above referred to during the term of said license, such sums of money as shall be due said participants, under the terms of the agreement for compensation above referred to, then this obligation shall be void. . . ." (All italics ours.)
It is well settled that a surety cannot be held for any liability beyond the express terms of his contract (Civil Code, sec. 2836), and interpreting the words of the bond above italicized according to their ordinary meaning and in the light of the commission's rules pursuant to which the bond was given, it is clear that the bond is limited to the payment of the participants in such contest after the contest is over, that is, to the payment of the contestants for services they have performed; and that it does not cover the default of the principal for failure to perform all of his obligations and undertakings as a licensed promoter. In other words, general liabilities may not be read into the coverage of the bond.
[2] Appellants contend that Gan should be deemed a participant within the meaning of the bond because both contracts were executed at the same time and he participated in the contest of November 30, 1938, called for by the first contract. There is no merit in the contention. The contest of November 30, 1938, was an entirely different engagement covered by a separate and distinct contract, and the services performed by him in that engagement were made the subject of a separate action, the appeal in which has this day been decided ( State Athletic Commission et al. v. Massachusetts Bonding Insurance Co., Civil No. 11415, ante, p. 823 [ 117 P.2d 75]).
[3] Even assuming that the bond in suit could be construed in accordance with appellants' view as one covering liability of the principal for damages for breach of contract to hold the second contest, the nonsuit was nevertheless properly granted, for the reason that Gan and Wolfe themselves breached the second contract by engaging in three other separate boxing contests prior to the date set by the second contract for the holding of the second contest. Appellants argue that there was no such breach because the second contract was post-dated March 9, 1939, and all three contests in which Gan participated at other places were held prior to that date. The argument is not sound because the second contract expressly provided that he would "not engage in any other boxing contest or exhibition at any place in the world until he has performed this contract," which called for the bout to be held on March 29, 1939. (Italics ours.)
The order appealed from is affirmed.
Peters, P.J., and Ward, J., concurred.