« ForrigeFortsett »
(145 N.E.) have cracked and the plaster fallen from the exclusively employed upon a particular buildwalls; that the heat was necessary to pre-ing or improvement, will likewise support a serve the interior construction from damage lien. No authority has been cited to the efby frost and that the men refused to work fect that furnishing heat for the comfort of unless it was furnished; that interest on a the workmen or to insure proper plastering mortgage on the property for a large sum or cement work has been regarded as matewas accruing; and that earlier completion rial entering into the building, or that labor of the building enabled the owners to reduce in furnishing such heat has been labor perthe interest charge during construction and formed in the building of the structure. No to derive their rents and profits sooner, to language in our statute justifies any such their manifest advantage. In support of his extension of its scope or meaning, nor can a petition, the appellant contends that the lien for any such items be implied from its heat used to give that temperature to plaster provisions. and concrete which enabled these substances
Appellant argues that the case of Rittento harden properly is material consumed in house & Embree Co. v. Brown & Co., supra, the process of construction; that it entered is not in point; that the lumber for which into the completed structure; and that in a lien was there denied was only used temconsequence labor performed in furnishing porarily for concrete moulds and forms, and, tbe heat gives him a lien therefor.
while depreciated in value by such use, was There are different degrees in which labor taken away by the contractor, and that thereand material contribute to a completed struc- fore the case is readily distinguishable from ture, and a service which is indirect may the authorities of other jurisdictions, which be as essential to construction as that which allow a lien where material, though employed is direct. Labor is necessary to furnish heat as a means in the process of construction, is to preserve the interior construction of a consumed in such process, and upon that building and to promote the comfort of work- theory are held to have entered into the conmen during the winter months. But neces- struction of the improvement. Cases are citsity is not the test, under our statute, wheth. ed in which, on the same theory a lien was er a lien will attach. The question is wheth- allowed for coal furnished in heating and er the labor performed in furnishing such drying a building (Crowell Lumber & Grain heat is labor performed in constructing the Co. v. Ryan [Neb.] 193 N. W. 609), for gunbuilding, or whether it is labor performed powder used in preparing ground for the in one of the processes of construction, as a building of an aqueduct (Sampson Co. v. means to assist in the erection of the build- Commonwealth, 202 Mass. 326, 88 N. E. 911), ing. It may be conceded that the heat gave for dynamite used in blasting ground for a the walls and floors the proper consistency, railroad (Schaghticoke Powder Co. v. Greenjust as a tangible ingredient, if one had been wich & Johnsonville Railway Co., 183 N. Y. invented for that purpose, would have done. 306, 76 N. E. 1532, L. R. A. (N. S.] 288, 111 Such an ingredient, when lodged in the com- Am. St. Rep. 751, 5 Ann. Cas. 443), for expleted structure, would be lienable, but it plosives used in excavating tunnels through would be so only because it is within the rock (Hercules Powder Co. v. Railroad Co., terms of the statute. A lien for labor in fur- 113 Tenn. 382, 83 S. W. 354, 67 L. R. A. 487, nishing heat in the construction of a build- 106 Am. St. Rep. 836), for electricity used ing during cold weather may have reason to in illuminating a mine to enable laborers to support it, but until such a lien is provided work therein (Grants Pass Trust Co. v. Enby the act we cannot extend its provisions terprise Mining Co., 58 Or. 174, 113 Pac. 859, to include it. The labor here performed in 34 L. R. A. (N. S.) 395), and for lumber, so furnishing heat was not more necessary or far as consumed in the construction of a closely connected with the actual construc- cofferdam to hold back water during the tion of, nor did it enter more thoroughly in- building of a permanent dam (Barker & Stewto, the completed building as a constituent art Lumber Co. v. Marathon Paper Mills Co., part than did the forms for cement work 146 Wis. 12, 130 N. W. 866, 36 L. R. A. (N. or the services of an architect in drawing S.) 875). These authorities, while very inplans and specifications before the amend- structive, are not necessarily persuasive. ment of the act allowing these items. Our The provisions of mechanic's lien statutes of statute makes a distinction between material other states vary from our own; hence the delivered for the purpose of being used in decisions under them afford little assistance the construction of a building and that used in determining the question here involved. merely as a means in the process of con- Usually the courts in those states have not struction, except where specifically provided applied, as is true here, the rule of strict by the act, as in the case of the forms and construction in the interpretation of those formwork above specified. If labor employed statutes. to afford temporary heat to insure the com [5, 6] Appellanţ urges that he took into fort of workmen will authorize a lien, then consideration the items for public liability it may be argued that food provided for their and workmen's compensation insurance in sustenance, and even lodging, while they are fixing the contract price. These items do not
constitute either labor or material, nor can Proceeding by the People, on the relation they be made, one or the other, by computing of the Chicago Bar Association, against Robthem as a part of the wages paid or of the ert Edelson and another, to suspend them contract price. The lien is provided by stat- from practice of law. Rule discharged. ute, and not by contract, and unless the stat
John Long Fogle, of Chicago, for relator. ute, under the rule of strict construction,
John J. Healy and Arthur C. Bachrach, creates the lien none can be asserted or main both of Chicago, for respondents. tained. The remedy by mechanic's lien is in addition to the ordinary remedies afford
DUNN, J.  Pursuant to leave granted, ed by the common law, and is a privilege en
an information was filed on the relation of joyed by one class of the community above
the Chicago Bar Association against Robert other classes. A party seeking to enforce such a lien must bring himself strictly within Edelson and Albert J. Goldberg, charging the terms of the statute. Freeman v. Rin- conduct in the filing and prosecution of an in
them with dishonorable and unprofessional aker, supra; Provost v. Shirk, supra. The judgment of the Appellate Court is voluntary petition in bankruptcy. The in
formation was answered, and the cause was affirmed.
referred to a commissioner, who has made a Judgment affirmed.
report of his findings, to which no exceptions have been filed by either side. Neither side has brought up the evidence, but the
relator has moved to suspend the respond(313 Ill. 601) PEOPLE ex rel. CHICAGO BAR ASS’N v. rule. The cause is therefore submitted for
ents, and the respondents to discharge the EDELSON et al. (No. 15326.)
judgment on the findings of the commission(Supreme Court of Illinois. Oct. 28, 1924.) er, whose findings of fact under such circum
stances are conclusive. 1. Attorney and client 54 Findings of commissioner in proceeding against attorneys
The information charged that on November conclusive, where evidence not brought up.
25, 1921, the Chicago Baling Press ManufacIn proceeding by bar association against at- turing Company was a going and solvent cortorneys, where case was referred to commis- poration, with assets of about $30,000 and sioner, and neither side has brought up evi- debts not exceeding $14,000; that because of dence, and cause is submitted for judgment unfavorable business conditions it was hay. on findings of commissioner, his findings of ing difficulty in meeting the demands of credfact are conclusive.
itors, but on September 7, 1921, all its princi2. Attorney and client w 38-Not necessarily pal creditors had agreed to accept its notes, unprofessional for attorney with claim to due in one year; that respondents had no solicit other claims for purpose of having claims for collection against the corporation, creditors sufficient to authorize petition in but, learning of its financial troubles, caused bankruptcy.
an involuntary petition in bankruptcy to be It is not unprofessional for an attorney, filed against it for the purpose of obtaining interested by reason of his employment to attorney's fees; that the petition was signed collect claim for client, to solicit claims for by Louis A. Rosenblum, a clerk in respondpurpose of having creditors sufficient in number and amount to authorize filing of petition the baling press company, without authority
ents' office, as agent for three creditors of in bankruptcy, notwithstanding Code of Ethics from them or knowledge of the facts about of American Bar Association, canon 27, good faith was exercised and intent was not merely their claims; that the petition was filed at to secure fees.
4:15 p. m. on November 25, 1921, and after
the close of the place of business of the bal3. Attorney and client 38 Reputation of ing press company the respondents on the
attorneys proceeded against to be taken into consideration, as well as practice of profes- the door, stating that on the next morning
same day caused a notice to be left under sion generally. In determining whether attorneys have
they would appear before the District Court been guilty of unprofessional conduct, their and ask for the appointment of a receiver; reputation is to be taken into consideration, that at that time Charles R. Holton, the atas well as practice observed by profession gen- torney for the baling press company, was aberally in matter involved.
sent from the city of Chicago, and some one 4. Attorney and client Cw38-Attorneys held Court at the time the respondent Edelson
from his office appeared before the District not shown guilty of unprofessional conduct, requiring their suspension.
presented a motion asking for a temporary Attorneys who solicited claims for purpose tinued from Saturday morning, November
receiver, and thereupon the motion was conof having creditors sufficient to authorize petition in bankruptcy, and represented petitioners 26, until Tuesday, November 29; that notin bankruptcy under mistaken belief that they withstanding the continuance the respondhad authority, held not guilty of unprofessional | ents procured the appointment of a conduct, warranting suspension.
ceiver on Monday, November 28, by some
OmFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
1115 N.E.) unknown method, during the absence of any his business and equipment of the value of representative of the baling press company ; $23,000 and $1,000 in cash. Five thousand that the receiver was discharged by the court dollars of the stock was taken by Maxwell on December 21, 1921, but the business of C. Tobias, who became the secretary of the the company was injured beyond any repair company, and later, with some members of by reason of the bankruptcy proceeding and his family, took the additional amount of the sending out of letters to its creditors; $3,500, leaving $2,500 of stock not issued. In that the respondents were guilty of solicita- the latter part of 1920 the company emtion of claims against the baling press com- ployed about 20 persons, but in 1921 there pany to creditors, whose names they obtained was a falling off in business and it was unfrom the books of the company in the pos- able to sell its machines. Three of them, session of the receiver, and the respondents, which had been sold for $13,000 each, were together with other attorneys, followed this returned, and the three were afterward sold practice for the purpose of controlling the for less than $13,000. In March and April, appointment of the trustees in bankruptcy 1921, the company had but four employees, proceedings, with a view of procuring fees in June and July only two, and afterward for themselves and their friends.
only one or two at times. On November 25 It appears from the master's findings that it owed $24,000, which induded indebtedness Robert Edelson was licensed as an attorney to Manuel and Tobias for their salaries and at law in 1910, and Albert J. Goldberg in for money loaned of approximately $8,000. 1920, and in the fall of 1921 they were as- Its assets consisted of machinery and tools, sociated, together with H. J. Paullin, in the stock of goods, and furniture, its accounts practice of law in the city of Chicago under receivable, not exceeding $200, with no cash the firm name of Edelson, Paullin & Gold- on hand, and little or no money in the bank. berg, and that Louis H. Rosenblum was in The machinery, tools, and fixtures were aftthe employ of the firm as a law clerk. He erward sold on May 16, 1922, by the receivwas about 25 years old, had studied law for ers appointed by the circuit court of Cook more than a year at the Northwestern Uni- county, for $2,104.12, and no appreciable
sity Law School, and had had consider-change had occurred before that time with able business experience in various kinds of respect to the character or condition of the commercial business. About September 10, machinery and fixtures. The fair valuation 1921, William McCauley placed in Rosen- of all the assets of the company did not exblum's hands for collection a claim for $27.57 ceed $6,000. In the early part of September, against the Chicago Baling Press Manufac- 1921, Manuel was arranging with his larger turing Company for teaming, and on the creditors for an extension of their claims same day Rosenblum visited the office of the for one year, and the majority of them had company. No one was working in the plant, signed an agreement for such an extension. but the superintendent, Saunders, was in the Their claims were from several months to a office, He discussed the financial business year past due and the company was unable of the company with Rosenblum, and con- to pay any of its debts. McCauley's claim ducted him about the building for the pur- was about nine months past due and was pose of showing the company's equipment undisputed. and stock. Saunders told Rosenblum that he A short time before November 25, 1921, would inform the president of the company Rosenblum solicited the claims of Frank Ol. of the fact that Rosenblum had the account son, the Link Belt Company, and Elmer Elfor collection, and he disclosed to Rosenblum lingston for the purpose of securing credithe names of some of the company's credi- tors sufficient in number and amount to entors, among them Frank Olson, the Link Belt able him to file an involuntary petition in Company, and Elmer Ellingston. He also bankruptcy. He had received information of told Rosenblum that Frederick G. Manuel, these claims from Saunders. They were unthe president of the company, had secured or disputed and past due, but Olson had signed was endeavoring to secure a year's exten- an extension of his claim for one year. The sion of the claims of the creditors and to question of Rosenblum's authority to sign raise some money to meet current expenses the names of Olson and Ellingston to the and bills. Rosenblum called again a week petition in bankruptcy is in dispute. The later and had a further talk with Saunders, claim of the Link Belt Company had been in and called at the plant on other occasions, the hands of the law firm of Culver, Andrews but found it closed.
& King for collection. They had been unThe Chicago Baling Press Manufacturing able to collect it, and were familiar with the Company was incorporated in 1919 for the financial situation of the company. Charles purpose of manufacturing certain baling J. Clusman, an attorney in the employ of presses to be used in baling scrap iron and that firm, turned the claim over to Rosenwaste material. It took over a business that blum for the purpose of being used in filing bad been owned and conducted by Manuel. the petition in bankruptcy, and the commisThe capital stock was $35,000, of which Man- sioner found that Rosenblum was warranted uel subscribed for $24,000, paying for it with by the authority given him by Clusman in
using the claim for that purpose. A few , be asked for in the proceeding on November days before filing the petition Rosenblum 26. was left under the door of the baling communicated with Frank Olson regarding press company after the close of business. bis claim against the Chicago Baling Press In response to the notice some one from the Manufacturing Company, and told him of office of Charles R. Holton, attorney for the the precarious financial condition of the com- baling press company, appeared and asked pany and of Rosenblum's intention to insti- that the application be continued until Notute bankruptcy proceedings. Rosenblum tes-vember 29, 1921, because of Holton's absence tified that he fully explained to Olson the from the city. The continuance was agreed necessity of three creditors joining in the to and the motion was continued. By misapplication, and Olson stated to him that the take the hearing on the motion was entered amount of his claim was about $700, that it continued until November 28, instead of Nowas an old one, and that Rosenblum might vember 29, and the order of continuance was use it. Olson testified that he had two con- printed and appeared in the Chicago Daily versations with Rosenblum over the tele- Law Bulletin of November 26. That day was phone, and in the first told Rosenblum that Saturday, and Edeleson, having left his ofhe wanted to consult with the Jones Foun-fice, had no notice of the error that had ocdry Company, another creditor, before he curred with reference to the continuance. would take any action, and in the second Goldberg noticed the order appearing in the conversation he told Rosenblum that he Bulletin, and on the following Monday mornwould not permit the use of his claim in a ing, November 28, during the absence of Edbankruptcy proceeding.
elson, appeared in the bankruptcy court to The commissioner found that no authority look after the motion. The motion was was given by Olson to Rosenblum for the use called, and, no one appearing for the baling of his claim in the bankruptcy proceeding. press company, Goldberg suggested the ap Rosenblum also attempted to telephone to pointment of a receiver, and the court ap Ellingston in order to secure his claim, but pointed the Central Trust Company of Illiwas unable to get in communication with nois receiver, without any suggestion by him. He left the request with the person Goldberg as to who should be appointed. who answered his call that Ellingston com Edelson appeared in court on Tuesday, Nomunicate with the firm of Edelson, Paullin & vember 29, and there met Holton, the attorGoldberg, and Ellingston called up their of- ney for the baling press company. On the fice and had a conversation with Goldberg, failure of the clerk to call the motion, inwho gave Ellingston such information as he quiry was made, and it was found the receiv. obtained from Rosenblum in regard to the er had been appointed the day before. Edelfinancial affairs of the baling press company son expressed his surprise, and offered to and told him of the necessity of having three have a hearing on the question of appointcreditors to join in the bankruptcy petition. ment at any time Holton would suggest, and Ellingston told him that he would mail a Holton at that time replied he would give statement of his claim and was willing that the matter further consideration, and would it be used for the purpose of filing the peti- take it up at a later time. An application to tion. The statement of the claim was mailed discharge the receiver was not made until by Ellingston and received at the office of December 21, 1921, when a motion for that Edelson, Paullin & Goldberg the next day. purpose and to dismiss the bankruptcy pro Ellingston admits having the conversation ceeding was presented and heard. At that with Goldberg, but testified that a receiver hearing Olson and Ellingston both testified, had already been appointed, and Goldberg re- and each denied that Rosenblum had been quested a statement of the claim for the given any authority by them, respectively, to purpose of attending to its collection. The sign their names to the petition and no aufinding of the commissioner is that Goldberg thority had been given to the firm of Edelin good faith believed that Ellingston had son, Paullin & Goldberg to represent them as granted the necessary authority to use his attorneys in filing or prosecuting the petition. claim in the bankruptcy proceeding.
The commissioner found that neither of the Neither of the respondents 'made any per- respondents was guilty of bad faith or imsonal investigation of the affairs of the Chi- proper conduct with respect to procuring the cago Baling Press Manufacturing Company. appointment of a receiver. Edelson had no active connection with the It was a common practice among attorneys bankruptcy proceeding and performed no per- practicing largely in the bankruptcy court, sonal service in the case, except that he ap- prior to filing the petition in bankruptcy peared on the application for the appoint against the Chicago Baling Press Manufacment of a receiver on November 26 and No-turing Company, to solicit claims against the vember 29. The involuntary petition in defendants in such bankruptcy proceedings bankruptcy signed by Rosenblum as agent for the purpose of controlling the election of for the three creditors, Olson, Ellingston, trustees of the bankrupt estate, and on or and the Link Belt Company, was filed on Now about May 16, 1922, the chairman of the com. vember 25, and notice that a receiver would mittee on professional ethics of the Chicago
(146 N.E.) Bar Association by letter of that date called , charged and the petition in bankruptcy was the attention of the respondents to their vio- dismissed. lation of canon 27 of the Code of Ethics of The finding of the commissioner is that the American Bar Association in soliciting Rosenblum was not authorized to sign the claims against a bankrupt in a case filed by petition on behalf of Olson or Ellingston, but them as attorneys. About the same time the it does not follow from this finding that the attention of other attorneys was called to respondents were guilty of unprofessional or similar violations. The respondents replied dishonorable conduct in filing the petition. to the letter, and made explanation of the There is no finding that the respondents had circumstances involved in the case, and dis- any reason to suspect Rosenblum's integrity. claimed knowledge of committing a violation His reputation, so far as appears, was good, of canon 27, but in their letter, and in an- and they were justified in relying on his repother letter written by them on March 26, resentations as to the financial condition of 1922, expressed their willingness to comply the company, as to the claim of McCauley, with the canon and refrain from any further and as to Rosenblum's statements that he violation of it. These letters were written had obtained the claims of the Link Belt by Edelson, and at that time Goldberg was company and Olson for the purpose of filing no longer associated in business with him, the petition in bankruptcy. The commissionand since then neither one of the respond- er found that Rosenblum's purpose in solicitents has solicited claims of creditors in any ing these claims was to secure sufficient credbankruptcy proceeding.
itors in number and amount to enable him After the dismissal of the bankruptcy pro- to file such petition. ceedings the respondents paid the costs of [2-4] The solicitation of business by perthe receivership, amounting to $338.18, and sonal communications not warranted by peralso paid to the baling press company the sonal relations is unprofessional, and so is sum of $500 in settlement of any civil liabil- the volunteering of advice to engage in litiity to the company arising out of that pro gation. The Bankruptcy Act requires, as a ceeding. During the three years prior to De- condition to filing an involuntary petition in cember, 1922, the respondents filed 24 invol- bankruptcy, that three creditors whose total untary bankruptcy proceedings, and no evi- claims aggregate $500 must join in the peti. dence was given of any irregularity in any of tion. It is unprofessional for an attorney them, other than that of the baling press having no interest to advise the filing of a company, except that in five or six instances petition in bankruptcy or to solicit claims letters were written to creditors of the de- for that purpose, but it is not necessarily unfendant in bankruptcy, after the filing of the professional for an attorney, interested by petition, soliciting their claims in the manner reason of his employment to collect a claim hereinbefore stated. Evidence was produced for a client, to solicit a claim for the purbefore the master of the good reputation of pose of having creditors sufficient in number the respondents for honesty, truth, veracity, and in amount to authorize the filing of a and as reputable members of the Chicago petition in bankruptcy. An attorney having bar.
a claim which it is his duty to collect should So far as the appointment of the receiver not be debarred from soliciting other claims, is concerned, the commissioner found that in order to procure creditors sufficient in neither of the respondents was guilty of bad number and amount to authorize the filing of faith or unprofessional conduct. The prema- a petition in bankruptcy, on the ground that ture hearing of the motion for the appoint- such solicitation is unprofessional. To do so ment of a receiver in the absence of the might deprive him of the only available company's counsel grew out of a mistake for means of collecting the claim which he has. which they were not responsible. Whether The motive of the solicitation was impornotice of the hearing on November 26 was tant in determining the propriety of the acgiven or not, there was an appearance by tion. If, it was to begin litigation in order the company's attorney and an agreement to enable the respondents to secure fees for for a continuance. The error in entering the themselves the action was unprofessional and order for a continuance was not one for dishonorable; if it was to secure their cliwhich the respondents were answerable; it ents' claims it was not unprofessional or diswas made by the clerk. Goldberg had no honorable. If they believed in good faith personal knowledge of the matter when he that they were authorized to represent the saw the notice in the Bulletin, and in the ab- petitioners in bankruptcy, and their action sence of his partner, Edelson, he appeared was taken to secure the latters' claims, such to attend the hearing. When Edelson the action was not unprofessional. next morning learned that the motion had The reputation of the respondents is to be been disposed of and the receiver appointed taken into consideration, as well as the pracon the day before, he made no claim under tice observed by the profession generally in the order, and immediately notified Holton the matter involved. The respondents were that he would consent to a hearing at any not bound to distrust their clerk, and undertime Holton wished, and there was a hearing take an independent investigation of the auon December 21, when the receiver was dis- thority which he represented himself to have,