ON PETITION FOR RE-HEARING.
Gordon, J.Counsel for the appellant in the above cases, which were tried together in the lower court, and which involve substantially the same questions, have filed elaborate petitions for re-hearing, which we have carefully considered, and in denying them deem it sufficient to notice only the following points, which are most strenuously urged:
1. It is insisted that the lower court erred in submitting to the jury the "question as to whose fault it was that no new arbitration was entered upon.” It is urged that the evidence fully established that the company offered to re-submit and that the offer was ignored by the respondent. In the opinion heretofore filed we said:
“ From the verdict arrived at we are bound to presume that the jury found that it was the fault of the company that no new arbitration was entered upon, and we are unable to say that such finding is not without sufficient evidence to support it.”
In the petition counsel very earnestly requests the court to point out where the evidence to support this finding can be found. We supposed our meaning was made clear in the opinion filed. As noticed therein, there was considerable correspondence between counsel representing the insurance companies and the respondent and his counsel, prior to the institution of these actions. Respondent’s proofs of loss were rejected by the companies for the reason that they were “not in accordance with the award of the appraiser.” *240The companies also took the position that a valid award had been made, and further stated that, “ Of course this award must control if valid, and we know of nothing tending to invalidate it. . . . We know of no reason why the parties to the submission agreement should not abide by the award.” In this connection we stated in the opinion:
“But the correspondence referred to must be interpreted in the light of the fact that the company was bound to know what its appraiser knew, namely, that the sum of $1,900 specified in the so-called award was erroneous, and had not in fact been agreed upon as the amount of the loss, and that no award had in fact been made. It also should have known that the agreement for submission was not in accordance with the terms of the policies, inasmuch as the blank form for submission was furnished by its appraiser. Besides, it was conceded by counsel for the appellant upon the trial below that the terms of submission to appraisement were not in accordance with the terms of the policy.”
With knowledge (presumptively) of the facts which rendered this so-called award invalid and ineffectual, the companies, nevertheless, professed to believe it was valid and binding. They were as much bound to know it was invalid as the respondent was to point out to them why it was so. In this condition of the record we were constrained to hold that there was sufficient evidence to support the finding of the jury that “it was the fault of the companies that no new arbitration was entered upon.”
One other point remains to be noticed. It is urged that the court erred in refusing to instruct the jury upon the issue of fraud. It is also insisted that there was no evidence of fraud, and that the court should have withdrawn all questions of fraud from the con*241sideration of the jury. We think, upon examination of the record, that that is what the court in effect did by the instruction which is set out in the opinion. In that instruction the jury were expressly told that “the question here for your determination is as to whose fault was it that no new arbitration was entered upon,” and the verdict of the jury was made to depend upon that question. The jury were further told:
“If you find that the defendant company is clear of fault in this respect, then the plaintiff is without right to maintain this action, and your verdict will be for the defendant company.”
In the light of this instruction, it seems clear to us that the jury could not have been misled and that no prejudice resulted to the appellants growing out of the court’s failure to give the instructions which were requested by them upon this subject.
After re-examination of the entire record, we adhere to the conclusion heretofore announced, and the petitions for re-hearing must be denied.
Scott C. J., and Dunbar, J., concur.