I think that the true rule in reference to the admission of parol evidence in cases like the present is clearly stated in 22 C.J., 1149, as follows: "The rule excluding parol evidence has no place in any inquiry unless the Court has before it some ascertained paper beyond question binding and of full effect, and hence parol evidence is admissible to show conditions relating to the delivery or taking effect of the instrument, as that it shall only become effective upon certain conditions or contingencies, *Page 359 for this is not an oral contradiction or variation of the written instrument but goes to the very existence of the contract and tends to show that no valid and effective contract ever existed; but evidence is not admissible which, conceding the existence and delivery of the contract or obligation, and that it was at one time effective, seeks to nullify, modify, or change the character of the obligation itself, by showing that it is to cease to be effective or is to have an effect different from that stated therein, upon certain conditions or contingencies, for this does vary or contradict the terms of the writing."
The evidence offered tends to show that it was expressly understood and agreed by the parties, at the time of the execution and delivery of the check and contract, that the check was to be held conditionally upon the ability of the defendant upon his return home, to make the necessary financial arrangements to meet the check and the cash payment of $5,750 within 60 days; and that if he could not do so, the check was to be returned to him and the contract canceled. It tended to show that at that time there was no ascertained paper beyond question binding and of full effect, but rather that the papers exchanged were only to become effective upon the conditions mentioned.
MESSRS. JUSTICES BLEASE, STABLER and CARTER concur.