dissenting.
The former opinion of the court, and the opinion of Chief Justice Sedgwick, filed herewith, in substance, hold : (1) That the state has no literary property in the opinions of the supreme court so that the defendant or any other person can be restrained from printing and publishing the same upon'its own account as an independent enterprise; (2) that the allegations of the petition with ref- • erence to recovery of damages are insufficient to support *767an action at law for damages. So far I concur with the majority.
These propositions being settled there still remains the inquiry whether,* under the conditions of the contract between the parties, the defendant has been guilty of, and is threatening such a violation of its terms as a court of equity will grant an injunction to restrain, on account of the inadequacy of the remedy by suit at law. The contract between the parties was entered into with knowledge by the defendant of the statute providing for the publication and sale of the supreme court reports. This statute became a part of the contract, of which the defendant was bound,to take notice. It knew therefore that the purpose of the contract was to procure 1,000 copies of each original volume and 500 copies of each duplicate to be printed from the state’s own plates furnished from its vaults, for the purpose of distributing a certain number of the copies to various officers and libraries, and of selling a much larger number, to create a library fund for the benefit of the state library. It whs therefore fully aware that the preparation of the manuscripts, the indexing, editing, proof reading, and the arrangement of the contents of each volume was performed under the contract by the officers of the state for the pecuniary benefit of the state. This was not the only object, but it was one of the purposes of the contract.
It may' be laid down as a general principle that no person has the right to use the property of another contrary to the wall and against the interest of its owner. This rule applies with greater force where the property of one has been delivered to another under a contract to use it for certain- specified purposes, and when the unauthorized use of the property for the benefit of the wrongful user would defeat the very object of the contract. When the state employed the defendant to print from its materials, furnished for the purpose, several thousand copies of supreme court reports, which the law prohibits the reporter of the supreme court from selling at less than a specified *768price, if the defendant might use these plates and print an unlimited number of copies for its own use and sell at any price, the effect might be to deprive the state of any benefit from the contract and leave it with the books it had paid for a useless burden on its shelves. If such were the only force and meaning of the agreement, no man of ■ ordinary business capacity would ever enter into it. Lord Holt said: “Every man’s bargain ought to be performed as he intended it,” and to believe that the contract entered into Avould permit such conduct on the part of the defendant would be to say that the state’s officers were void of ordinary judgment.
With that portion of the opinion of Chief Justice Sedg-wick quoted hereafter I therefore concur: “The state had the right in the manuscripts and in the plates, and the defendant did wrong in using them without the consent of the state, and would be liable under suitable allegations for such injury as the state suffered by reason thereof. The contract between the plaintiff and the state was of such a nature that the agreement on the part of defendant not to use the plates and manuscripts of the state for such purpose might be reasonably implied, because the defendant had no right to so use them.” And, further: “Without doubt' the law will imply an agreement on the part of the defendant not to use for its own private purposes the properly of the state, entrusted to defendant’s care to enable it to carry out the contract. * * * The state has a right to control the use of its own property, and, Avhen by contract it places-its property in the hands of its employees for a special purpose, the law, in the absence of anything in the contract to the contrary, will imply an agreement that the property shall be used only for that purpose.” I further concur in so far as the opinion holds that the fact that the defendant entered into the contract Avith the state in noAvise deprived it of the right Avhich it had, in common Avith every other citizen, to procure in the ordinary manner copies of the opinions of the supreme court, to arrange, index, correct the proof, *769and otherwise prepare them for publication, and to print and publish them, since there is no private ownership in the literary matter of the opinions themselves. In fact, the only difference of opinion there seems to he between the majority of the court and myself is with reference to the remedy; their idea being that, by the violation of the implied contract, the defendant wrould become liable to the state only for the value of the unauthorized use of the state’s materials and also for any injury done to the plates, while my view is that the legal remedy of damages, under all the circumstances of the case, is inadequate, and an equitable remedy necessary. Mr. Pomeroy says: “Where the agreement stipulates that certain acts shall not be done, an injunction preventing the commission of those "acts is evidently the only mode of enforcement; but the remedy of an injunction is not confined to contracts whose stipulations are negative; it often extends to those which are affirmative in their provisions, where the affirmative stipulation implies or includes a negative. The universal test of the jurisdiction, admitted alike by the courts of England and of the United States, is the inadequacy of the legal remedy of damages in the class of contracts to which the particular instance belongs.” 4 Pomeroy, Equity Jurisprudence (3d ed.), sec. 1341. See, also, 5 Pomeroy, Equity Jurisprudence, Equitable Remedies, sec. 270, and note 2. The rule is that, where there is a continuing breach of a negative covenant in a contract, and where an injunction against its violation will do justice and equity between the parties by compelling the defendant to carry out his contract according to the intention of the parties, or to keep him from reaping any profit or benefits from the breach of it, and where the remedy at law is not adequate, a court of equity will restrain the defendant from such a breach. Western Union Telegraph Co. v. Union P. R. Co., 1 McCr. (U. S. C. C.) 558; Singer S. M. Co. v. Union B. H. & E. Co., 1 Holmes (U. S.), 253; Chicago & A. R. Co. v. New York, L. E. & W. R. Co., *77024 Fed. 516; New York Bank Note Co. v. Hamilton Bank Note, E. & P. Co., 31 N. Y. Supp. 1060; Saltus v. Belford Co., 133 N. Y. 499; Myers v. Steel Machine Co., 67 N. J. Eq. 300, 57 Atl. 1080; 2 Beach, Modern Equity Jurisprudence, secs. 769, 770. The question involved in this case is not one of copyright or of literary property, but is one of contract and the proper remedy for a breach thereof, and this is why I think much of my brother Sedgwick’s opinion is not germane to the question involved.
From the nature of the contract it will be observed that the damages which may flow from its breach are almost impossible of ascertainment. They may continue for a long period of years by the defendant’s glutting the market with the reports which it is alleged it printed in violation of its contract, and thus deprive the state of the opportunity to reimburse itself for the money which it has paid for the printing of the books. The difficulty of ascertaining or recovering any specific damages furnishes a foundation for the interposition of a court of equity. Can it be questioned that, if the defendant was still in possession of these plates and manuscripts, and was using and threatening to use them in printing copies of the reports for its own use with the intention of selling them at reduced prices, it could not be enjoined? If it can be enjoined from using these plates, and from using the editorial labors paid for by the state in the preparation of indexes and the arrangement of manuscripts in violation of the contract, why should it not be enjoined from selling the unauthorized copies and thus profiting by its breach of the contract?
To sum up, the contract implied by its terms a negative covenant or restriction that the defendant would not use the property and material of the state, furnished it for the purpose of executing the contract, in such a manner as to defeat the object of the agreement and against the interest of the state. It made a breach of this implied agreement. The ordinary remedies provided by a legal action are clearly inadequate and, hence, a court of equity *771should enjoin any further violation of the implied contract. See Bispham, Principles of Equity (6th ed.), secs. 461-464.
Of course, this discussion has proceeded upon the assumption that the allegations of the petition are true. What the proof may show, if issues are made up, we cannot foresee.
In my opinion the petition states a cause of action in equity to enjoin a breach of contract, and the demurrer should be overruled.
The following opinion on motion for leave to file amended petition was filed March 7, 1907. Motion overruled:
Judgments, Vacating After Term. The provisions of sections 602-609 of the code apply to original actions in the supreme court. The court therefore has no power or jurisdiction to set aside a judgment and allow the amendment of a petition, in its discretion, after the final adjournment of the term at which the judgment was rendered.Letton, J.
Application has been made during the present term of the court to file an amended petition in this case. A final judgment of dismissal, upon the demurrer to the petition being sustained, was entered at the September, 1906, term, since the plaintiff had formally announced that it would stand on its pleadings. The defendant contends that, since that term adjourned without further proceedings, the judgment entered was a final disposition of the case.
The action was brought under the original jurisdiction of this court, which is concurrent with that of the district court in like actions. Ordinarily a judgment of the district court, after the adjournment of the term at which it was rendered, becomes final.. The power of the district court to vacate or modify its judgments, after the expiration of the term at which such judgments or orders are *772made, is controlled by the provisions of sections 602-609 of the code. In Huntington & McIntyre v. Finch, 3 Ohio St. 445, it is said: “The court of common pleas has ample control over its own orders and judgments during the term at which they are rendered, and the power to vacate or modify them in its discretion. But this discretion ends Avith the term, and no such discretion exists at a subsequent term of the court.” This rule has been repeatedly upheld in this state with reference to the powers of the district court. Smith v. Pinney, 2 Neb. 139; McBrien v. Riley, 38 Neb. 561; Ganzer v. Schiffbauer, 40 Neb. 633; Schuyler B. & L. Ass’n v. Fulmer, 61 Neb. 68; Sherman County v. Nichols, 65 Neb. 250. Section 610 of the code provides as follows: “The provisions of this title subsequent to section 601 shall apply to the supreme court and probate court, so far as the same may be applicable to the judgments or final orders of such courts.” These provisions of the statute place it beyond the power of the court in an original cause at a subsequent term to set aside a judgment and permit an amendment of a petition, except in the manner and for the reasons prescribed in section 602.
Independent of these provisions, we are of the opinion that under the statutes we have no power to alloAV the amendment at this time. A discussion of the rules relative to original actions in the supreme court is to be found in In re Petition of Attorney General, 40 Neb. 402, and the conclusion is there reached that, since section 2 of the code provides there shall be but one form of action, and in section 903 it is provided that AAdiere the statute gives an action, but does not describe the mode of proceeding therein, the action shall be held to be the civil action of this code, therefore, original cases in this court must be governed by the rules of the code. If this action had been brought in the district court the right of the court in its discretion to set aside the judgment and to allow the plaintiff to amend its petu'on would expire Avith the term. As Ave have seen, both by the special provisions of section 610 *773and by tlie general provisions of the code, this court is governed as to judgments in original actions by the rub's pertaining to judgments in the district court, and, since if the judgment had been rendered in the district court its power to set the judgment aside would have ended with the term, so that of this court ended with the adjournment of the September, 190C, term, and we ha/e now no power or. jurisdiction to allow the amendment.
Leave to file an amended petition is therefore
Denied.