(concurring).
The Standard Specifications forming part of the contract between Louisiana Department of Plighways and W. R. Aldrich and Company contained the following provision:
“The Department reserves the right to eliminate from the work to be done by the contractor the removal of any or all of the buildings, structures and so forth, itemized under these items, if deemed advisable by the engineer.. jfc *>
*818In conformity with this provision, the Highway Department eliminated the partial removal of the plaintiff’s building from the work to be done. In my opinion, the modification was effective, though the plaintiff may have previously consented to avail herself of the advantage stipulated in her favor.
When the right to modify has been reserved in the contract, the contract may be modified even after the third party has consented to avail himself of the benefit. The theory is that the third party receives the stipulation with all of its built-in conditions and limitations. The right of the beneficiary can rise no higher than its source. See Dorsett v. Thomas, 152 La. 60, 92 So. 734; Pollock v. Pollock, 164 La. 1077, 115 So. 275; Alba v. Provident Savings Life Assurance Society, 118 La. 1021, 43 So. 663. 2 Planiol Civil Law Treatise (Translation by Louisiana State Law Institute) Nos. 1247 and 1261; Smith, J. Denson, Third Party Beneficiaries in Louisiana: The Stipulation Pour Autrui, 11 Tulane L.Rev. 18, 56-57. Compare 17 Am.Jur.2d, Contracts, § 318, p. 747.
In 2 Planiol, Civil Law Treatise, No. 1247, cited supra, we find the following language :
“ * * * [T]he will of the parties having created a right for the benefit of a third person, can cause it to exist with all the characteristics which it pleases them to give to it. Therefore, they could have created this right as revocable if it seemed desirable to them.”
Dr. J. Denson Smith states in 11 Tulane Law Review at pages 56-57:
“Given the consent on the part of the beneficiary to avail himself of the stipulation, his right can rise no higher than its source. Whatever conditions are attached thereto are effective. Likewise the promisor may oppose to the suit of the beneficiary any defenses arising from the contract which are available to him as against the prom-isee such as that the contract was ineffective because lacking in certainty, or unenforceable for reasons authorized by law, or that there was a failure of consideration, or of a condition upon which performance of the promise was made to depend.”
Article 1902, LSA-C.C., making a stipulation irrevocable after the third party has signified his assent, is, of course, subject to the provision of the contract whereby the Highway Department retained the right to eliminate the removal of any building.
For the reasons assigned, I concur in the decree.