Greiss

This action is upon a fire insurance policy, and the appeal is taken by the insurance company from the judgment and from an order refusing a new trial.

Only two points are made here: 1. That the court erred in refusing to instruct the jury that in case they find that the proof of loss furnished by plaintiff to the company was false or fraudulent, their verdict should be for the defendant; and 2. In refusing to instruct the jury that plaintiff could not recover if he refused to submit the matter of loss to arbitration; but, on the other hand, instructed the jury that arbitration was not a condition precedent to plaintiff’s right to recover.

Respondent contends that the answer raises no issue as to false statements or fraud, and that a forfeiture is not claimed. The instruction asked therefore was not pertinent to any matter involved in the trial, and was rejected for that reason. I think this contention must be sustained. The policy was attached to and made a part of the complaint. It provided that immediate *243 notice of any loss should be given, with a full statement of particulars and amount of loss, etc., and that “any false swearing, fraud or attempt at fraud on the part of…