The controlling fact is not disputed; it is proved by the plaintiffs as well as by the defendants, and contradicted by no witness.
In November, 1902, the representatives of the plaintiffs made an *817oral arrangement with one of the defendants for the leasing of lodge rooms in a building which the defendants were starting to construct, to the lodge of the Knights of Pythias of which the plaintiffs are the trustees. The complaint says such oral agreement was for a lease for 10 years from February 1st, 1903, with unlimited right to assign and sublet. The answer says it was for 5 years, with no right to assign or sublet, except to a sister lodge of the same order, i. e., a lodge of sisters of the Knights of Pythias, as the evidence explains it.
Now the undisputed fact is that the defendants denied from the beginning that the oral agreement was for a ten years restricted lease. The parties met several times between the first conversation in November and the day the plaintiffs moved in, April 16th, 1903, and this was the dispute every time, and the defendants refused to yield their understanding of what the oral arrangement was. The plaintiffs even employed a lawyer to demand a 10 years lease, but the defendants still stood their ground, and refused.
In this situation, i. e., being positively told, as they themselves prove, that they could only have a five years lease, with a restriction against assigning or subletting, the plaintiffs moved in. 'This was not a moving in under an Oral agreement for a 10 years lease.
They afterwards papered the walls at a cost of $65, carpeted at a cost of $197.75, put nosings on the platform at a cost of $21.50, paid $146.05 for labor and materials, which are not described at all, and $56.50 for settees, a total of $486.80.
Now they bring this suit for specific performance of the alleged oral agreement for a 10 years lease on the ground that the said expenditures were made under the faith of the said oral agreement, and that that gives equity jurisdiction under the head of part performance and the prevention of fraud.
But concededly there was no such oral agreement when the plaintiffs moved in. On the contrary, the parties were in dispute as to what the lease should be. It matters not whether the defendants said in November (which they deny) that they would give a 10 years lease or not. If they did, they had the right to recede from it before the plaintiffs moved in, and say they would only give a 5 years lease, for the oral agreement was void; and without dispute *818they did say they would not give a 10 years lease, but only a 5 years lease, and stuck to it.
The court could'not base a finding of an agreement on the said first conversation or conversations, for concededly the defendants had a right to recede therefrom, and did so, if it be assumed that the plaintiff’s version thereof, and not the defendants’, is the time one and that therefore such an agreement was originally made. The finding of fact that the plaintiffs went into possession under the agreement alleged in the complaint is wholly unsupported, and falls, and the judgment must fall for lack of its support.
Moreover, the fitting up done by the plaintiffs will not be lost to them under a five years lease, and the element of fraud, which gives jurisdiction to equity in cases of part performance, is therefore lacking. The work they did does not usually last for more than five years, and it does not appear that they would encounter any loss thereof by taking a 5 years lease.
After the plaintiffs moved in the dispute was continued, and there is evidence of the interviews had, which it is claimed goes to show by admissions what the original arrangement in November was. But this does not disturb the fact that whatever the November arrangement was, whatever was said then, the defendants immediately thereafter, and all the time up to the moving in, asserted that they would not give a ten years lease, and that hence the moving in was not under an oral promise of a 10 years lease.
Finally, there is no evidence that the defendants ever agreed.to let without restrictions in respect of assigning or subletting.
The judgment should be reversed.
Bich and Miller, JJ., concurred; Jerks, J., read for affirmance, with whom Hooker, J., concurred.