(dissenting).
I cannot agree with the conclusion of the majority on rehearing that, conceding the existence of a stipulation pour autrui, *820“plaintiff has never accepted the advantages made in her favor.”
The rights of the beneficiary of a stipulation pour autrui arise immediately upon the making of the contract although it is subject to revocation until acceptance.
“In fact the text of the Code does not require an ‘acceptance’; it requires only ‘consent’ by the beneficiary ‘to avail himself of the advantage’. In short, the right to the advantage is already his, it has already been acquired, and his ‘consent’ alone is necessary to render it indefeasible. Furthermore, no particular kind of ‘acceptance’ is necessary. Thus, the required consent may be found in any action by the beneficiary which manifests his recognition of the advantage or interest provided for him such as by undertaking to dispose of it, by acquiescing in the conduct of an assumer, by instituting suit, by accepting payments from the promisor in discharge of promisee’s indebtedness, by notifying the promisor of the maturity of the debt, by granting the promisor an extension of time for payment, or in any manner authorized by the Code.” 11 Tul.L.Rev. 18, 55 (1936).
It is to be observed from the quoted language, which I consider a correct and proper interpretation of the pertinent codal article, that the law is not to be concerned with niceties and formalities in resolving whether the beneficiary of a stipulation pour autrui has consented to avail himself of the advantages of that stipulation. Rather, I am of the opinion that the requisite consent may be satisfactorily established upon the slightest manifestation of consent by the beneficiary and that the consent may be established by direct evidence or by implication and circumstance.
Thus the letter of Mrs. Cox to the Department of Highways quoted in the majority opinion on rehearing is a clear manifestation of consent by Mrs. Cox to accept the benefits of the stipulation in her favor. It is unimportant that this consent was manifested to the Department and not to the contractor, Aldrich, as the majority seems to think. Aldrich has never taken the position that it was unaware of the fact that Mrs. Cox had consented to avail herself of the advantage. LSA-Civ.Code, arts. 1816, 1817, 1818. To the contrary the evidence is unmistakably otherwise. Mr. Holland, owner of Aldrich, testified:
“Q. Did you attempt to fulfill your contractual obligation with Mrs. Cox?
“A. Yes, sir.
* * * * * *
“Q. Did you ever tell Mrs. Cox that you would not cut off 10 feet and add it to the rear?
“A. No, sir. I couldn’t tell anyone I would not do that. I was under bond to do that.”
*822Thus I am of the opinion that the beneficiary consented to avail herself of the benefits of the stipulation in the manner above pointed out and, furthermore, her tacit consent is to be implied from her conduct or inaction and failure to protest when she permitted the Department to- come upon her property and perform the work of clearing the right of way. Her consent to permit the Department to do the highway work was predicated upon the understanding that they would make the alterations to her premises or have the contractor do so. This consent, then, having been obtained in advance of the stipulation and in anticipation of the stipulation, as it were, made it quite clear to all involved that there could be little doubt that Mrs. Cox was ready to accept and desired the benefits of the stipulation in her favor. The fact is that these benefits were absolutely necessary to the continued useful life of this commercial property. The validity of this conclusion is made abundantly clear by the fact that this property has been rendered useless for its former purposes by the work of the Department and the failure of Al-dridge to make the alterations stipulated for.
Another circumstance which impressed the majority and upon which its opinion appears to rest was its interpretation of the evidence leading to the conclusion that Mrs. Cox sought to obtain the removal of pumps and a canopy in addition to the alteration of her garage. This additional requirement imposed by her, the majority holds, prevented her acceptance from being an unconditional acceptance in keeping with the stipulation pour autrui. But even if this version of the facts were correct, which I do not concede, it is quite evident from a reading of the record, and, particularly, the contract, that this work was within the contemplation of the parties and within the terms of the stipulation. The contract so provides, viz.:
“(4) The Department of Highways of the State of Louisiana, its Engineers, Agents and/or Contractors shall alter and/or remove from the right of way hereby conveyed, all biiildings and/or improvements, together with their appurtenances, as prescribed in accordance with the construction plans for said State Project * * * and/or as designated by the District Engineer of the said Department.” (Emphasis added.)
The other requirements which the majority seems to think Mrs. Cox sought to impose which were not in keeping with the stipulation, such as, grading the property to conform to the new road level and the construction of entrances and driveway approaches to the front of her building, I think, are so obviously necessary and such a standard procedure in highway construction that it is elementary that the perform-*824anee of this kind of work is to be implied in every highway construction contract.
Even if we were to concede that the record supports a finding that Mrs. Cox sought to obtain more than was stipulated for her benefit, that, in itself, would not relieve the contractor of the task of altering the building, which was an advantage Mrs. Cox consented to avail herself of constituting an obligation the contractor unequivocally recognized. Nor should such a concession deter this court in making an award to Mrs. Cox for the value of that portion of the work required to be performed by the contractor about which there could be no question, either as to the stipulation in Mrs. Cox’s favor or as to her consent to avail herself of its benefits. The fact remains, however, that the contractor did nothing and Mrs. Cox has received none of the advantages stipulated in her favor. The injustice which has resulted is therefore complete and not just partial.
The provision in the contract whereby the Department reserved the right to eliminate certain work to be done by the contractor, referred to in the concurring opinion of Mr. Justice Sanders, could not apply to work stipulated for the benefit of Mrs. Cox. This is so because the Department had taken over her property with the understanding that the work in question would be done for her. I am of the opinion that, by its actions in taking her property for its purposes, the Department abandoned the right to revoke any stipulation in her favor.
I, therefore, respectfully dissent.