T. H. Lundt v. Insurance Company North

This is an action for an attorney's fee brought by T. H. Lundt, doing business as T. H. Lundt Construction Company, against
Insurance Company of North America. Judgment was entered for plaintiff in the district court. We reverse the judgment and
dismiss the cause. Plaintiff brought an action against Parsons Construction Company which had engaged in the construction of a sanitary sewer
for Sanitary & Improvement District No. 35 of Douglas County, Nebraska. Defendant furnished a performance bond for Parsons
and was joined as a defendant in the action against Parsons. On demurrer, the trial court ruled there was a misjoinder of
parties and directed that the suit against this defendant be separately docketed. Basis of the action was damage done by
Parsons to a storm sewer being constructed by Lundt for the city of Omaha, Nebraska. Judgment was rendered against Parsons.
See Lundt v. Parsons Constr. Co., 181 Neb. 609, 150 N.W.2d 108. The judgment was promptly paid by Parsons' liability insurer.
An attorney's fee was not allowed in that case and plaintiff now seeks to recover the fee from the defendant on the Parsons'
performance bond.