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Chicago Coliseum Club v. Dempsey, 265 Ill.App. 542 (1932)

Award Irrespective of Actual Damage

Where promoter had a valid subsisting contract
KeyCite Yellow Flag - Negative Treatment
with boxer to engage in boxing match, and
Distinguished by Meyer v. Buckman, Ill.App. 2 Dist., October 27,
1955 boxer refused to perform according to terms of
contract, promoter as a matter of law was entitled
265 Ill.App. 542 at least to nominal damages.
Appellate Court of Illinois, First District.
Cases that cite this headnote
Chicago Coliseum Club, Appellant,
v.
[4] Damages
William Harrison Dempsey, Also
Natural and Probable Consequences of
Known as Jack Dempsey, Appellee. Breaches of Contract

Gen. No. 35,276. | March, 1932. In action for breach of contract, recovery can be
had only for damages which naturally flow from
and are result of act complained of.
West Headnotes (10)
Cases that cite this headnote

[1] Contracts
Acts Constituting Renunciation and [5] Damages
Liabilities Therefor Breach of Contract

Where promoter sent telegram to boxer, under In promoter's action against boxer for breach
contract to engage in boxing match, stating that of contract to engage in boxing match for
representatives of life and accident insurance world's heavy-weight championship, loss of
companies would call on boxer to examine him profits which would have been derived in event
in accordance with contract, boxer's telegram of holding match was purely speculative and not
in reply stating that he was too busy training a proper element of damages, and hence trial
for another match to waste time on insurance court properly sustained objection to testimony
representatives and that promoter had no contract of anticipated gross receipts, expenses, and net
and should stop kidding himself and boxer was a profits.
repudiation of contract.
1 Cases that cite this headnote
Cases that cite this headnote
[6] Damages
[2] Damages Expenses
Certainty as to Amount or Extent of In promoter's action against boxer for breach of
Damage contract to engage in boxing match, evidence
Compensation for damages for breach of of expenses incurred by employee under written
contract must be established by evidence from contract with promoter in furtherance of match
which court or jury are able to ascertain extent was inadmissible on question of damages where
of damages by usual rules of evidence and to a employee's compensation depended entirely
reasonable degree of certainty. upon success of match, and there was no basis for
charging promoter unconditionally with costs of
2 Cases that cite this headnote employee's services.

Cases that cite this headnote

[3] Damages

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Chicago Coliseum Club v. Dempsey, 265 Ill.App. 542 (1932)

In promoter's action against boxer for breach of

[7] Damages contract to engage in boxing match, expenses
Expenses incurred in attempting to restrain boxer from
In promoter's action against boxer for breach engaging in other contests and to force him
of contract to engage in boxing match, into compliance with terms of contract were
evidence of items of expense incurred between not recoverable as damages where boxer had
date of signing contract and breach as informed promoter that he did not intend to
necessary expenses in furtherance of match, proceed further under contract, since promoter
such as payment to architect for stadium plans took such steps at its own financial risk.
and special expenses incurred by promoter's
employees, was admissible on question of 3 Cases that cite this headnote
damages.

Cases that cite this headnote

**1 *544 Appeal by plaintiff from the Circuit Court of
[8] Damages Cook county; the Hon. H. STERLING POMEROY, Judge,
Expenses presiding. Heard in the third division of this court for the first
district at the October term, 1931. Reversed and remanded.
In promoter's action against boxer for breach of
Opinion filed March 16, 1932.
contract to engage in boxing match, damages
were recoverable for items of expense incurred Attorneys and Law Firms
by promoter between date of signing contract and
breach as necessary expenses in furtherance of JOHN F. ROSEN, RALPH ROSEN, G. A. FARABAUGH
match. and WALTER R. ARNOLD, for appellant.

Cases that cite this headnote DUNNE & CORBOY and ARTHUR F. DRISCOLL, for
appellee.
[9] Damages Opinion
Expenses
In promoter's action against boxer for breach MR. JUSTICE WILSON delivered the opinion of the court.
of contract to engage in boxing match for
Chicago Coliseum Club, a corporation, as plaintiff, brought
world's heavyweight championship, expenses
its action against William Harrison Dempsey, known as Jack
incurred by promoter prior to signing of contract
Dempsey, to recover damages for breach of a written contract
could not be considered as element of damages
executed March 13, 1926, but bearing date of March 6 of that
where promoter had entered into contract with
year.
opponent prior to contract with boxer, money
payable to opponent upon signing of contract Plaintiff was incorporated as an Illinois corporation for
was never paid, and there was no evidence that the promotion of general pleasure and athletic purposes
promoter was financially responsible. and to conduct boxing, sparring and wrestling matches and
exhibitions for prizes or purses. The defendant William
4 Cases that cite this headnote
Harrison Dempsey was well known in the pugilistic world
and, at the time of the making and execution of the contract
[10] Damages in question, held the title of world's Champion Heavy Weight
Litigation Between Person Injured and Boxer.
Wrongdoer
Under the terms of the written agreement, the plaintiff was
to promote a public boxing exhibition in *545 Chicago,

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Chicago Coliseum Club v. Dempsey, 265 Ill.App. 542 (1932)

plaintiff and Wills appears to have been entered into several

or some suitable place to be selected by the promoter, and
days before the contract with Dempsey.
had engaged the services of one Harry Wills, another well
known boxer and pugilist, to engage in a boxing match with **2 March 8, 1926, the plaintiff entered into a contract
the defendant Dempsey for the championship of the world. with one Andrew C. Weisberg, under which it appears
By the terms of the agreement Dempsey was to receive $10, that it was necessary for the plaintiff to have the services
receipt of which was acknowledged, and the plaintiff further of an experienced person skilled in promoting boxing
agreed to pay to Dempsey the sum of $300,000 on the 5th exhibitions and that the said Weisberg was possessed of
day of August 1926,--$500,000 in cash at least 10 days before such qualifications and that it was necessary for the plaintiff
the date fixed for the contest, and a sum equal to 50 per
to procure his help in the promoting of the exhibition. It
cent of the net profits over and above the sum of $2,000,000 appears further from the agreement that it was necessary to
in the event the gate receipts should exceed that amount. In incur expenditures in the way of traveling expenses, legal
addition the defendant was to receive 50 per cent of the net
services and other costs in and about the promotion of the
revenue derived from moving picture concessions or royalties boxing match, and Weisberg agreed to investigate, canvass
received by the plaintiff, and defendant agreed to have his life and organize the various hotel associations and other business
and health insured in favor of the plaintiff in a manner and organizations for the purpose of securing accommodations
at a place to be designated by the plaintiff. Defendant further for spectators and to procure subscriptions and contributions
agreed not to engage in any boxing match after the date of from such hotels and associations and others for the erection
the agreement and prior to the date on which the contest was of an arena and other necessary expense in order to carry out
to be held. Certain agreements previously entered into by the the enterprise and to promote the boxing match in question.
defendant with one Floyd Fitzsimmons for a Dempsey-Wills Under these agreements Weisberg was to furnish the funds
boxing match were declared to be void and of no force and for such purposes and was to be reimbursed out of the receipts
effect. Certain other mutual agreements were contained in the from the sale of tickets for the expenses incurred by him,
written contract which are not necessary in a consideration of together with a certain amount for his services.
this case.
Both the Wills contract and the Weisberg contract are referred
March 6, 1926, the plaintiff entered into an agreement with to at some length, inasmuch as claims for damages by plaintiff
Harry Wills, in which Wills agreed to engage in a boxing are predicated upon these two agreements. Under the terms
match with the Jack Dempsey named in the agreement of the contract between the plaintiff and Dempsey and the
hereinbefore referred to. Under this agreement the plaintiff, plaintiff and Wills, *547 the contest was to be held during
Chicago Coliseum Club was to deposit $50,000 in escrow in the month of September, 1926.
the National City Bank of New York City, New York, to be
paid over to Wills on the 10th day prior to the date fixed for July 10, 1926, plaintiff wired Dempsey at Colorado Springs,
the holding of the boxing contest. Further conditions were Colorado, stating that representatives of life and accident
provided in said contract with Wills, which, however, are insurance companies would call on him for the purpose
*546 not necessary to set out in detail. There is no evidence of examining him for insurance in favor of the Chicago
in the record showing that the $50,000 was deposited nor that Coliseum Club, in accordance with the terms of his contract,
it has ever been paid, nor is there any evidence in the record and also requesting the defendant to begin training for the
showing the financial standing of the Chicago Coliseum Club, contest not later than August 1, 1926. In answer to this
a corporation, plaintiff in this suit. This contract between the communication plaintiff received a telegram from Dempsey,
as follows:
“BM Colorado Springs Colo July 10th 1926
B. E. Clements
insurance representatives stop as you have no contract suggest
President Chicago Coliseum Club Chgo Entirely too busy you stop kidding yourself and me also
training for my coming Tunney match to waste time on Jack Dempsey.”

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Chicago Coliseum Club v. Dempsey, 265 Ill.App. 542 (1932)

nominal damages. For this reason, if for no other, judgment

should have been for the plaintiff.
We are unable to conceive upon what theory the defendant
could contend that there was no contract, as it appears to be During the proceeding in the circuit court of this county it
admitted in the proceeding here and bears his signature and was sought to introduce evidence for the purpose of showing
the amounts involved are sufficiently large to have created damages, other than nominal damages, *549 and in view
a rather lasting impression on the mind of anyone signing of the fact that the case has to be retried, this court is
such an agreement. It amounts, however, to a repudiation of asked to consider the various items of expense claimed to
the agreement and from that time on Dempsey refused to have been incurred and various offers of proof made to
take any steps to carry out his undertaking. It appears that establish damages for breach of the agreement. Under the
Dempsey at this time was engaged in preparing himself for a proof offered, the question of damages naturally divides itself
contest with Tunney to be held at Philadelphia, Pennsylvania, into the four following propositions:
sometime in September, and on August 3, 1926, plaintiff,
as complainant, filed a bill in the superior court of Marion 1st. Loss of profits which would have been derived by the
county, Indiana, asking to have Dempsey restrained and plaintiff in the event of the holding of the contest in question;
enjoined from engaging in the contest with Tunney, which
2nd. Expenses incurred by the plaintiff prior to the signing of
complainant was informed and believed was to be held on the
the agreement between the plaintiff and Dempsey;
*548 16th day of September, and which contest would be in
violation of the terms of the agreement entered into between 3rd. Expenses incurred in attempting to restrain the defendant
the plaintiff and defendant at Los Angeles, March 13, 1926. from engaging in other contests and to force him into a
compliance with the terms of his agreement with the plaintiff;
**3 Personal service was had upon the defendant Dempsey
and
in the proceeding in the Indiana court and on August 27, 1926,
he entered his general appearance, by his attorneys, and filed 4th. Expenses incurred after the signing of the agreement and
his answer in said cause. September 13, 1926, a decree was before the breach of July 10, 1926.
entered in the superior court of Marion county, finding that
the contract was a valid and subsisting contract between the Proposition 1. Plaintiff offered to prove by one Mullins that
parties, and that the complainant had expended large sums a boxing exhibition between Dempsey and Wills held in
of money in carrying out the terms of the agreement, and the City of Chicago on September 22, 1926, would bring a
entering a decree that Dempsey be perpetually restrained gross receipt of $3,000,000, and that the expense incurred
and enjoined from in any way, wise, or manner, training or would be $1,400,000, leaving a net profit to the promoter
preparing for or participating in any contracts or engagements of $1,600,000. The court properly sustained an objection
in furtherance of any boxing match, prize fight or any to this testimony. The character of the undertaking was
exhibition of like nature, and particularly from engaging or such that it would be impossible to produce evidence of a
entering into any boxing match with one Gene Tunney, or probative character sufficient to establish any amount which
with any person other than the one designated by plaintiff. could be reasonably ascertainable by reason of the character
of the undertaking. The profits from a boxing contest of
It is insisted among other things that the costs incurred by the this character, open to the public, is dependent upon so
plaintiff in procuring the injunctional order in Marion county, many different circumstances that they are not susceptible
Indiana, were properly chargeable against Dempsey for his of definite legal determination. The success or failure of
breach of contract and recoverable in this proceeding. Under such an undertaking depends largely upon the ability of the
the evidence in the record in this proceeding there appears to promoters, the reputation of the contestants and the conditions
have been a valid subsisting agreement between the plaintiff of the weather at and prior to the holding of the contest, the
and Dempsey, in which Dempsey was to perform according *550 accessibility of the place, the extent of the publicity,
to the terms of the agreement and which he refused to do, the possibility of other and counter attractions and many
and the plaintiff, as a matter of law, was entitled at least to other questions which would enter into consideration. Such
an entertainment lacks utterly the element of stability which

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Chicago Coliseum Club v. Dempsey, 265 Ill.App. 542 (1932)

exists in regular organized business. This fact was practically damage which can be recovered for breach of the contract in
admitted by the plaintiff by the allegation of its bill filed in question.
the Marion county court of Indiana asking for an injunction
against Dempsey. Plaintiff in its bill in that proceeding Proposition 3: Expenses incurred in attempting to restrain the
charged, as follows: defendant from engaging in other contests and to force him
into a compliance with the terms of his agreement with the
**4 “That by virtue of the premises aforesaid, the plaintiff plaintiff.
will, unless it secures the injunctive relief herein prayed
for, suffer great and irreparable injury and damages, not After the repudiation of the agreement by the defendant,
compensable by any action at law in damages, the damages plaintiff was advised of defendant's match with Tunney
being incapable of commensuration, and plaintiff, therefore, which, from the evidence, it appears, was to take place
has no adequate remedy at law.” in Philadelphia in the month of September and was in
direct conflict with the terms of the agreement entered into
Compensation for damages for a breach of contract must be between plaintiff and defendant. Plaintiff's bill, filed in the
established by evidence from which a court or jury are able superior court of Marion county, Indiana, was an effort on
to ascertain the extent of such damages by the usual rules of the part of the plaintiff to compel defendant to live up to
evidence and to a reasonable degree of certainty. We are of the terms of his agreement. The chancellor in the Indiana
the opinion that the performance in question is not susceptible court entered his decree, which apparently is in full force
of proof sufficient to satisfy the requirements and that the and effect, and the defendant in violating the terms of that
damages, if any, are purely speculative. Favar v. Riverview decree, after personal service, is answerable to that court for a
Park, 144 Ill. App. 86; Broadway Photoplay Co. v. World violation of the injunctional order entered in said proceeding.
Film Corp., 225 N. Y. 104; Wooldridge v. Shea, 175 N. Y. S. The expenses incurred, *552 however, by the plaintiff in
130; Bernstein v. Meech, 130 N. Y. 354. procuring that decree are not collectible in an action for
damages in this proceeding; neither are such similar expenses
Proposition 2: Expenses incurred by the plaintiff prior to the as were incurred in the trips to Colorado and Philadelphia,
signing of the agreement between the plaintiff and Dempsey. nor the attorney's fees and other expenses thereby incurred.
Cuyler Realty Co. v. Teneo Co., Inc., 188 N. Y. S. 340. The
The general rule is that in an action for a breach of contract a
plaintiff having been informed that the defendant intended to
party can recover only on damages which naturally flow from
proceed no further under his agreement, took such steps at
and are the result of the act complained of. O'Conner v. Nolan,
its own financial risk. There was nothing in the agreement
64 Ill. App. 357. The Wills contract was entered into prior to
regarding attorney's fees and there was nothing in the contract
the contract with the defendant and was not made contingent
in regard to the services of the defendant from which it
upon *551 the plaintiff's obtaining a similar agreement
would appear that the action for specific performance would
with the defendant Dempsey. Under the circumstances the
lie. After the clear breach of contract by the defendant, the
plaintiff speculated as to the result of his efforts to procure
plaintiff proceeded with this character of litigation at its
the Dempsey contract. It may be argued that there had
own risk. We are of the opinion that the trial court properly
been negotiations pending between plaintiff and Dempsey
held that this was an element of damages which was not
which clearly indicated an agreement between them, but the
recoverable.
agreement in fact was never consummated until sometime
later. The action is based upon the written agreement which **5 Proposition 4: Expenses incurred after the signing of
was entered into in Los Angeles. Any obligations assumed the agreement and before the breach of July 10, 1926.
by the plaintiff prior to that time are not chargeable to the
defendant. Moreover, an examination of the record discloses After the signing of the agreement plaintiff attempted to
that the $50,000 named in the contract with Wills, which show expenses incurred by one Weisberg in and about the
was to be payable upon a signing of the agreement, was not furtherance of the project. Weisberg testified that he had taken
and never has been paid. There is no evidence in the record an active part in promoting sports for a number of years
showing that the plaintiff is responsible financially, and, even and was in the employ of the Chicago Coliseum Club under
though there were, we consider that it is not an element of a written contract during all of the time that his services

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Chicago Coliseum Club v. Dempsey, 265 Ill.App. 542 (1932)

to Colorado for the purpose of having Dempsey take his

were rendered in furtherance of this proposition. This contract
physical examination for insurance, if before the breach and
was introduced in evidence and bore the date of March 8,
1926. Under its terms Weisberg was to be reimbursed out of reasonable, are recoverable. The railroad fares for those who
went to Los Angeles for the purpose of procuring the signing
the gate receipts and profits derived from the performance.
of the agreement are not recoverable as they were incurred in
His compensation depended entirely upon the success of the
a furtherance of the procuring of the contract and not after the
exhibition. Under his agreement with the plaintiff there was
agreement was entered into. The services of Shank in looking
nothing to charge the plaintiff unconditionally with the costs
after railroad facilities and making arrangements with the
and expenses of Weisberg's services. The court properly ruled
railroad for publicity and special trains and accommodations
against the admissibility of the evidence.
were items which should be considered and if it develops that
*553 We find in the record, however, certain evidence they were incurred in a furtherance of the general *554 plan
which should have been submitted to the jury on the question and properly proven, are items for which the plaintiff should
of damages sustained by the plaintiff. The contract on which be reimbursed.
the breach of the action is predicated shows a payment
**6 The items recoverable are such items of expense as were
of $10 by the plaintiff to the defendant and the receipt
incurred between the date of the signing of the agreement and
acknowledged. It appears that the stadium located in the
the breach of July 10, 1926, by the defendant and such as
South Park District, known as Soldier's Field, was considered
were incurred as a necessary expense in furtherance of the
as a site for the holding of the contest and plaintiff testified
that it paid $300 to an architect for plans in the event the performance. Proof of such items should be made subject to
the usual rules of evidence.
stadium was to be used for the performance. This item
of damage might have been made more specific and may For the reasons stated in this opinion the judgment of the
not have been the best evidence in the case but, standing circuit court is reversed and the cause remanded for a new
alone, it was sufficient to go to the jury. There were certain trial.
elements in regard to wages paid assistant secretaries which Judgment reversed and cause remanded.
may be substantiated by evidence showing that they were
necessary in furtherance of the undertaking. If these expenses
were incurred they are recoverable if in furtherance of the
general scheme. The defendant should not be required to HEBEL, P. J., and FRIEND, J., concur.
answer in damages for salaries paid regular officials of
the corporation who were presumed to be receiving such All Citations
salaries by reason of their position, but special expenses
incurred are recoverable. The expenses of Hoffman in going 265 Ill.App. 542, 1932 WL 2782

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