(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 to harden properly is material consumed in the process of construction; that it entered into the completed structure; and that in consequence labor performed in furnishing the heat gives him a lien therefor. There are different degrees in which labor and material contribute to a completed structure, and a service which is indirect may be as essential to construction as that which is direct. Labor is necessary to furnish heat to preserve the interior construction of a building and to promote the comfort of workmen during the winter months. But necessity is not the test, under our statute, whether a lien will attach. The question is whether the labor performed in furnishing such heat is labor performed in constructing the building, or whether it is labor performed in one of the processes of construction, as a means to assist in the erection of the building. It may be conceded that the heat gave the walls and floors the proper consistency, just as a tangible ingredient, if one had been invented for that purpose, would have done. Such an ingredient, when lodged in the completed structure, would be lienable, but it would be so only because it is within the terms of the statute. A lien for labor in furnishing heat in the construction of a building during cold weather may have reason to support it, but until such a lien is provided by the act we cannot extend its provisions to include it. The labor here performed in furnishing heat was not more necessary or closely connected with the actual construction of, nor did it enter more thoroughly into, the completed building as a constituent part than did the forms for cement work or the services of an architect in drawing plans and specifications before the amendment of the act allowing these items. Our statute makes a distinction between material delivered for the purpose of being used in the construction of a building and that used merely as a means in the process of construction, except where specifically provided by the act, as in the case of the forms and formwork above specified. If labor employed to afford temporary heat to insure the comfort of workmen will authorize a lien, then it may be argued that food provided for their sustenance, and even lodging, while they are Appellant argues that the case of Rittenhouse & Embree Co. v. Brown & Co., supra, is not in point; that the lumber for which a lien was there denied was only used temporarily for concrete moulds and forms, and, while depreciated in value by such use, was taken away by the contractor, and that therefore the case is readily distinguishable from the authorities of other jurisdictions, which allow a lien where material, though employed as a means in the process of construction, is consumed in such process, and upon that theory are held to have entered into the construction of the improvement. Cases are cited in which, on the same theory a lien was allowed for coal furnished in heating and drying a building (Crowell Lumber & Grain Co. v. Ryan [Neb.] 193 N. W. 609), for gunpowder used in preparing ground for the building of an aqueduct (Sampson Co. v. Commonwealth, 202 Mass. 326, 88 N. E. 911), for dynamite used in blasting ground for a railroad (Schaghticoke Powder Co. v. Greenwich & Johnsonville Railway Co., 183 N. Y. 306, 76 N. E. 1532, L. R. A. [N. S.] 288, 111 Am. St. Rep. 751, 5 Ann. Cas. 443), for explosives used in excavating tunnels through rock (Hercules Powder Co. v. Railroad Co., 113 Tenn. 382, 83 S. W. 354, 67 L. R. A. 487, 106 Am. St. Rep. 836), for electricity used in illuminating a mine to enable laborers to work therein (Grants Pass Trust Co. v. Enterprise Mining Co., 58 Or. 174, 113 Pac. 859, 34 L. R. A. [N. S.] 395), and for lumber, so far as consumed in the construction of a cofferdam to hold back water during the building of a permanent dam (Barker & Stewart Lumber Co. v. Marathon Paper Mills Co., 146 Wis. 12, 130 N. W. 866, 36 L. R. A. [N. S.] 875). These authorities, while very instructive, are not necessarily persuasive. The provisions of mechanic's lien statutes of other states vary from our own; hence the decisions under them afford little assistance in determining the question here involved. Usually the courts in those states have not applied, as is true here, the rule of strict construction in the interpretation of those statutes. [5, 6] Appellant urges that he took into consideration the items for public liability and workmen's compensation insurance in fixing the contract price. These items do not constitute either labor or material, nor can they be made, one or the other, by computing them as a part of the wages paid or of the contract price. The lien is provided by statute, and not by contract, and unless the statute, under the rule of strict construction, creates the lien none can be asserted or maintained. The remedy by mechanic's lien is in addition to the ordinary remedies afforded by the common law, and is a privilege en joyed by one class of the community above other classes. A party seeking to enforce such a lien must bring himself strictly within the terms of the statute. Freeman v. Rinaker, supra; Provost v. Shirk, supra. The judgment of the Appellate Court is affirmed. Judgment affirmed. (313 Ill. 601) PEOPLE ex rel. CHICAGO BAR ASS'N v. 2. Attorney and client 38-Not necessarily unprofessional for attorney with claim to solicit other claims for purpose of having creditors sufficient to authorize petition in bankruptcy. Proceeding by the People, on the relation of the Chicago Bar Association, against Robert Edelson and another, to suspend them from practice of law. Rule discharged. John Long Fogle, of Chicago, for relator. John J. Healy and Arthur C. Bachrach, both of Chicago, for respondents. DUNN, J. [1] Pursuant to leave granted, an information was filed on the relation of the Chicago Bar Association against Robert Edelson and Albert J. Goldberg, charging them with dishonorable and unprofessional conduct in the filing and prosecution of an involuntary petition in bankruptcy. The information was answered, and the cause was referred to a commissioner, who has made a 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 respondents, and the respondents to discharge the rule. The cause is therefore submitted for judgment on the findings of the commissioner, whose findings of fact under such circumstances are conclusive. (Supreme Court of Illinois. Oct. 28, 1924.) 1. Attorney and client 54 Findings of The information charged that on November commissioner in proceeding against attorneys conclusive, where evidence not brought up. 25, 1921, the Chicago Baling Press Manufac In 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 havon findings of commissioner, his findings of ing difficulty in meeting the demands of credfact are conclusive. itors, but on September 7, 1921, all its principal creditors had agreed to accept its notes, due in one year; that respondents had no claims for collection against the corporation, but, learning of its financial troubles, caused an involuntary petition in bankruptcy to be filed against it for the purpose of obtaining attorney's fees; that the petition was signed by Louis A. Rosenblum, a clerk in respondents' office, as agent for three creditors of the baling press company, without authority from them or knowledge of the facts about their claims; that the petition was filed at 4:45 p. m. on November 25, 1921, and after the close of the place of business of the baling press company the respondents on the the door, stating that on the next morning same day caused a notice to be left under they would appear before the District Court and ask for the appointment of a receiver; that at that time Charles R. Holton, the attorney for the baling press company, was absent from the city of Chicago, and some one Court at the time the respondent Edelson from his office appeared before the District presented a motion asking for a temporary receiver, and thereupon the motion was continued from Saturday morning, November It is not unprofessional for an attorney, interested by reason of his employment to collect claim for client, to solicit claims for purpose of having creditors sufficient in number and amount to authorize filing of petition in bankruptcy, notwithstanding Code of Ethics of American Bar Association, canon 27, if good faith was exercised and intent was not merely to secure fees. 3. Attorney and client 38 Reputation of attorneys proceeded against to be taken into consideration, as well as practice of profession generally. In determining whether attorneys have been guilty of unprofessional conduct, their reputation is to be taken into consideration, as well as practice observed by profession generally in matter involved. 4. Attorney and client 38-Attorneys held not shown guilty of unprofessional conduct, requiring their suspension. Attorneys who solicited claims for purpose of 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 reconduct, warranting suspension. ceiver on Monday, November 28, by some For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (145 N.E.) unknown method, during the absence of any representative of the baling press company; that the receiver was discharged by the court on December 21, 1921, but the business of the company was injured beyond any repair by reason of the bankruptcy proceeding and the sending out of letters to its creditors; that the respondents were guilty of solicitation of claims against the baling press company to creditors, whose names they obtained from the books of the company in the possession of the receiver, and the respondents, together with other attorneys, followed this practice for the purpose of controlling the appointment of the trustees in bankruptcy proceedings, with a view of procuring fees for themselves and their friends. It appears from the master's findings that Robert Edelson was licensed as an attorney at law in 1910, and Albert J. Goldberg in 1920, and in the fall of 1921 they were associated, together with H. J. Paullin, in the practice of law in the city of Chicago under the firm name of Edelson, Paullin & Goldberg, and that Louis H. Rosenblum was in the employ of the firm as a law clerk. He was about 25 years old, had studied law for more than a year at the Northwestern University Law School, and had had considerable business experience in various kinds of commercial business. About September 10, 1921, William McCauley placed in Rosenblum's hands for collection a claim for $27.57 against the Chicago Baling Press Manufacturing Company for teaming, and on the same day Rosenblum visited the office of the company. No one was working in the plant, but the superintendeħt, Saunders, was in the office. He discussed the financial business of the company with Rosenblum, and conducted him about the building for the purpose of showing the company's equipment and stock. Saunders told Rosenblum that he would inform the president of the company of the fact that Rosenblum had the account for collection, and he disclosed to Rosenblum the names of some of the company's creditors, among them Frank Olson, the Link Belt Company, and Elmer Ellingston. He also told Rosenblum that Frederick G. Manuel, the president of the company, had secured or was endeavoring to secure a year's extension of the claims of the creditors and to raise some money to meet current expenses and bills. Rosenblum called again a week later and had a further talk with Saunders, and called at the plant on other occasions, but found it closed. The Chicago Baling Press Manufacturing Company was incorporated in 1919 for the purpose of manufacturing certain baling presses to be used in baling scrap iron and waste material. It took over a business that had been owned and conducted by Manuel. The capital stock was $35,000, of which Manuel subscribed for $24,000, paying for it with his business and equipment of the value of $23,000 and $1,000 in cash. Five thousand dollars of the stock was taken by Maxwell C. Tobias, who became the secretary of the company, and later, with some members of his family, took the additional amount of $3,500, leaving $2,500 of stock not issued. In the latter part of 1920 the company employed about 20 persons, but in 1921 there was a falling off in business and it was unable to sell its machines. Three of them, which had been sold for $13,000 each, were returned, and the three were afterward sold for less than $13,000. In March and April, 1921, the company had but four employees, in June and July only two, and afterward only one or two at times. On November 25 it owed $24,000, which included indebtedness to Manuel and Tobias for their salaries and for money loaned of approximately $8,000. Its assets consisted of machinery and tools, stock of goods, and furniture, its accounts receivable, not exceeding $200, with no cash on hand, and little or no money in the bank. The machinery, tools, and fixtures were afterward sold on May 16, 1922, by the receivers appointed by the circuit court of Cook county, for $2,104.12, and no appreciable change had occurred before that time with respect to the character or condition of the machinery and fixtures. The fair valuation of all the assets of the company did not exceed $6,000. In the early part of September, 1921, Manuel was arranging with his larger creditors for an extension of their claims for one year, and the majority of them had signed an agreement for such an extension. Their claims were from several months to a year past due and the company was unable to pay any of its debts. McCauley's claim was about nine months past due and was undisputed. A short time before November 25, 1921, Rosenblum solicited the claims of Frank Olson, the Link Belt Company, and Elmer Ellingston for the purpose of securing creditors sufficient in number and amount to enable him to file an involuntary petition in bankruptcy. He had received information of these claims from Saunders. They were undisputed and past due, but Olson had signed an extension of his claim for one year. The question of Rosenblum's authority to sign the names of Olson and Ellingston to the petition in bankruptcy is in dispute. The claim of the Link Belt Company had been in the hands of the law firm of Culver, Andrews & King for collection. They had been unable to collect it, and were familiar with the financial situation of the company. Charles J. Clusman, an attorney in the employ of that firm, turned the claim over to Rosenblum for the purpose of being used in filing the petition in bankruptcy, and the commissioner found that Rosenblum was warranted 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. his 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 necessity of three creditors joining in the application, and Olson stated to him that the amount of his claim was about $700, that it was an old one, and that Rosenblum might use it. Olson testified that he had two conversations with Rosenblum over the telephone, and in the first told Rosenblum that he wanted to consult with the Jones Foundry Company, another creditor, before he would take any action, and in the second conversation he told Rosenblum that he would not permit the use of his claim in a bankruptcy proceeding. from the city. The continuance was agreed to and the motion was continued. By mistake the hearing on the motion was entered continued until November 28, instead of November 29, and the order of continuance was printed and appeared in the Chicago Daily Law Bulletin of November 26. That day was Saturday, and Edeleson, having left his office, had no notice of the error that had occurred with reference to the continuance. Goldberg noticed the order appearing in the Bulletin, and on the following Monday morning, November 28, during the absence of Edelson, appeared in the bankruptcy court to look after the motion. The motion was called, and, no one appearing for the baling press company, Goldberg suggested the appointment of a receiver, and the court appointed the Central Trust Company of Illinois receiver, without any suggestion by Goldberg as to who should be appointed. Edelson appeared in court on Tuesday, November 29, and there met Holton, the attor failure of the clerk to call the motion, inquiry was made, and it was found the receiver had been appointed the day before. Edelson expressed his surprise, and offered to have a hearing on the question of appoint The commissioner found that no authority was given by Olson to Rosenblum for the use of his claim in the bankruptcy proceeding. Rosenblum also attempted to telephone to Ellingston in order to secure his claim, but was unable to get in communication with him. He left the request with the person who answered his call that Ellingston communicate with the firm of Edelson, Paullin & Goldberg, and Ellingston called up their of-ney for the baling press company. On the fice and had a conversation with Goldberg, who gave Ellingston such information as he obtained from Rosenblum in regard to the financial affairs of the baling press company and told him of the necessity of having three creditors to join in the bankruptcy petition.ment at any time Holton would suggest, and Ellingston told him that he would mail a statement of his claim and was willing that it be used for the purpose of filing the petition. The statement of the claim was mailed by Ellingston and received at the office of Edelson, Paullin & Goldberg the next day. Ellingston admits having the conversation with Goldberg, but testified that a receiver had already been appointed, and Goldberg requested a statement of the claim for the purpose of attending to its collection. The finding of the commissioner is that Goldberg in good faith believed that Ellingston had granted the necessary authority to use his claim in the bankruptcy proceeding. Holton at that time replied he would give the matter further consideration, and would take it up at a later time. An application to discharge the receiver was not made until December 21, 1921, when a motion for that purpose and to dismiss the bankruptcy proceeding was presented and heard. At that hearing Olson and Ellingston both testified, and each denied that Rosenblum had been given any authority by them, respectively, to sign their names to the petition and no authority had been given to the firm of Edelson, Paullin & Goldberg to represent them as attorneys in filing or prosecuting the petition. The commissioner found that neither of the respondents was guilty of bad faith or improper conduct with respect to procuring the appointment of a receiver. It was a common practice among attorneys practicing largely in the bankruptcy court, prior to filing the petition in bankruptcy against the Chicago Baling Press Manufac Neither of the respondents made any personal investigation of the affairs of the Chicago Baling Press Manufacturing Company. Edelson had no active connection with the bankruptcy proceeding and performed no personal service in the case, except that he appeared on the application for the appointment of a receiver on November 26 and No-turing Company, to solicit claims against the vember 29. The involuntary petition in bankruptcy signed by Rosenblum as agent for the three creditors, Olson, Ellingston, and the Link Belt Company, was filed on November 25, and notice that a receiver would defendants in such bankruptcy proceedings for the purpose of controlling the election of trustees of the bankrupt estate, and on or about May 16, 1922, the chairman of the committee on professional ethics of the Chicago (145 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 to file such petition. After the dismissal of the bankruptcy proceedings the respondents paid the costs of the receivership, amounting to $338.18, and also paid to the baling press company the sum of $500 in settlement of any civil liability to the company arising out of that proceeding. During the three years prior to December, 1922, the respondents filed 24 involuntary bankruptcy proceedings, and no evidence was given of any irregularity in any of them, other than that of the baling press company, except that in five or six instances letters were written to creditors of the defendant in bankruptcy, after the filing of the petition, soliciting their claims in the manner hereinbefore stated. Evidence was produced before the master of the good reputation of the respondents for honesty, truth, veracity, and as reputable members of the Chicago bar. So far as the appointment of the receiver is concerned, the commissioner found that neither of the respondents was guilty of bad faith or unprofessional conduct. The premature hearing of the motion for the appointment of a receiver in the absence of the company's counsel grew out of a mistake for which they were not responsible. Whether notice of the hearing on November 26 was given or not, there was an appearance by the company's attorney and an agreement for a continuance. The error in entering the order for a continuance was not one for which the respondents were answerable; it was made by the clerk. Goldberg had no personal knowledge of the matter when he saw the notice in the Bulletin, and in the absence of his partner, Edelson, he appeared to attend the hearing. When Edelson the next morning learned that the motion had been disposed of and the receiver appointed on the day before, he made no claim under the order, and immediately notified Holton that he would consent to a hearing at any time Holton wished, and there was a hearing on December 21, when the receiver was dis [2-4] The solicitation of business by personal communications not warranted by personal relations is unprofessional, and so is the volunteering of advice to engage in litigation. The Bankruptcy Act requires, as a condition to filing an involuntary petition in bankruptcy, that three creditors whose total claims aggregate $500 must join in the petition. It is unprofessional for an attorney having no interest to advise the filing of a petition in bankruptcy or to solicit claims for that purpose, but it is not necessarily unprofessional for an attorney, interested by reason of his employment to collect a claim for a client, to solicit a claim for the purpose of having creditors sufficient in number and in amount to authorize the filing of a petition in bankruptcy. An attorney having a claim which it is his duty to collect should not be debarred from soliciting other claims, in order to procure creditors sufficient in number and amount to authorize the filing of a petition in bankruptcy, on the ground that such solicitation is unprofessional. To do so might deprive him of the only available means of collecting the claim which he has. The motive of the solicitation was important in determining the propriety of the action. If it was to begin litigation in order to enable the respondents to secure fees for themselves the action was unprofessional and dishonorable; if it was to secure their clients' claims it was not unprofessional or dishonorable. If they believed in good faith that they were authorized to represent the petitioners in bankruptcy, and their action was taken to secure the latters' claims, such action was not unprofessional. The reputation of the respondents is to be taken into consideration, as well as the prac tice observed by the profession generally in the matter involved. The respondents were not bound to distrust their clerk, and undertake an independent investigation of the authority which he represented himself to have, |