
    No. 6059.
    New Orleans Manufacturing and Building Company vs. John Hawkins.
    A recovery cannot be had against a defendant on a hypothesis, but where circumstances appear to require and justify it, there will be judgment of non-suit to enable the plaintiff to supply proof.
    
      Appeal from the Fifth District Court of New Orleans. Cullom, J.
    
      Singleton & Browne for Plaintiff. Hornor & Benedict for Defendant Appellant.
    The suit was for the value of brick furnished one Ivens, the contractor. There were two houses built side by side by the same contractor, but owned by different persons. The brick had been used by the contractor, but he had died, and the plaintiff did not know how many had been used in each building, and did not prove in this case what proportion of them the defendant had used. The lower court gave the plaintiff judgment.
   Manning, C. J.,

delivered the opinion reversing the judgment, and for the defendant absolutely, but White, J., read a dissenting opinion, with whom Spencer, J., concurred. On rehearing the court unanimously adopted the suggestion of the dissenting justices, .and gave judgment as of non-suit.  