The two points presented on the appeal are, as stated in the appellant's brief:
"First, was the building contract a cost plus contract or a contract to do all that was called for in the plans and specifications at the fixed maximum sum of $1,600; and, second, were the appellees estopped from maintaining the cross-action by the written acceptance in evidence ?"
The terms of the contract obligated the appellant to do, seemingly, two things: "To build and construct" the "certain improvements," which was to be in accordance with the written plans and specifications; "and to provide all labor and material to the extent of sixteen hundred dollars, which amount is to include ten per cent. overhead charges, to be used in the construction and erection thereof." Considering this paragraph in connection with the other portion of the contract, and the clause in the agreed written plans and specifications, which is a part of the contract, there is no ambiguity in the language of the contract. The parties, by intent and effect, contemplated that the entire cost payable and to be paid of putting the specific repairs and improvements upon the house, in accordance with the plans and specifications, should be only "to the extent," meaning at a cost not above or exceeding said sum "of $1,600.00, which amount is to include ten per cent. overhead charges." In other words, by purpose and intention of the parties, the contractor was obligated to furnish as much, and no more, labor and material for putting the specific repairs and improvements upon the house as could reasonably and fairly be done within the cost of "$1,600.00, including ten per cent. overhead charges," and the owner was obligated to pay as much as, but no more than, that sum of money. In the event the work called for in the plans and specifications was completed at a cost less than "$1,600.00, including ten per cent. overhead charges," the owner was entitled, by intendment and effect, to a reduction to that extent from the $1,600. And if the sum of $1,600 was found insufficient, and more money was required, to actually cover the cost of making all of the specific repairs and improvements needed to complete the work according to the plans and specifications, then, in that event, in order to proceed further, a new agreement should stipulate the terms and conditions binding the parties. Therefore, if the appellant expended more than $1,600 in placing repairs upon the house, it could not legally recover for such excess, unless the appellees agreed to pay for same in a separate agreement, although the repairs were needed and in accordance with the plans and specifications. And there is involved in the judgment the finding of fact that the appellees did not, independent of the written contract, promise, expressly or impliedly, to pay such excess. The evidence in that respect was conflicting, and we do not undertake to review it. The suit is based entirely upon a contract to pay.
As to the second ground, there was no error in the ruling of the court that the *Page 230 instrument or affidavit in evidence did not, in the facts, estop appellees from claiming damages for defective performance of the work, as is the nature of the cross-action. The appellees by their cross-action were not seeking to avoid the contract or liability thereon. They were standing on the contract, as such, seeking damages only for improper breach of performance. The testimony goes to show that at the time of the execution of the instrument the appellees did not have full knowledge of the alleged damages occasioned by the default in the proper performance of the work; and in the facts before the court his finding against estoppel, as involved in his judgment, would have support. The material may have been of inferior quality, or the work may have been imperfectly done, so as to thereby cause damage to the owner; and in such case, even had he paid for the work, the owner would be entitled to recover damages for breach of the contract. Even though the instrument purports to declare that the "Clem Construction Company has fully completed and carried out all the terms of said contract," yet this was done after the work had been done and the materials furnished, and without knowledge, as appellee says, on his part of the defective work. There was no misleading acquiescence of appellees prejudicial to the construction company, so far as the record shows. And the "acceptance," as termed, was not made in pursuance or requirement of any term of contract to do so.
The rule is fundamental that, unless the representation of the party to be estopped has been acted upon by the other party in a way different from the way he otherwise would have acted, and to his prejudice, no estoppel arises. Bank v. Beilharz, 94 Tex. 493, 62 S.W. 743.
The judgment is affirmed.