(After stating the foregoing facts.) 1. There is no merit in the contention that it was not proper to bring the suit in the name of Bean, suing for the use of McNesser. West v. Morris, 10 Ga. App. 651 (73 S. E. 1075).
2. The proffered amendment to the defendant’s answer, which alleged fraud in the procurement of the contract, was properly disallowed, since the facts therein set forth were insufficient to show fraud.
3. While the proffered amendment to the answer was properly disallowed, the defendant, under his original answer, was entitled to show by parol evidence, if he could, that the instrument in question was signed by the defendant with the express understanding and agreement that it was to be held in escrow by MeNesser, the agent, and not to be delivered to Bean, the owner, .until the defendant had sold his home place, and that that place had never been sold, and that the instrument had never been delivered to Bean.
A written instrument may, by parol evidence, be shown not to be a contract at all, because of the non-performance of a condition precedent as to which the writing is silent. It may be shown by parol evidence "that the writing is not a valid or en*465forceable legal obligation because it does not possess finality of utterace as a completed, all-comprebesive, and presently operative embodiment of the entire agreement of the contracting parties.” Heitmann v. Commercial Bank, 6 Ga. App. 584 (65 S. E. 590). It is manifest that there is a very marked difference between allowing parol evidence for the purpose of varying the terms of a writing whose execution and delivery are not denied, and allowing parol proof for the purpose of showing that, on account of the non-performance of some condition, perhaps not stated in the instrument, the alleged contract was in reality never created at all.” Hartman Stock Farm v. Henley, 8 Ga. App. 255 (68 S. E. 957). See also Equitable Mfg. Co. v. Hill-Atkinson Co., 17 Ga. App. 494 (87 S. E. 715); Hansford v. Freeman, 99 Ga. 376 (27 S. E. 706); Purcell v. Armour Packing Co., 4 Ga. App. 253, 256 (61 S. E. 138).
It follows from what has been said that the trial court erred in rejecting the evidence offered by the defendant for the purpose of showing that when he signed the instrument sued upon he did it with the express understanding and agreement that the instrument was not to be delivered until he had sold his home place, that he had sold it, and that the instrument had never been delivered. The error in rejecting this evidence necessitated a new trial; and the judge of the superior court erred in overruling the certiorari.
Judgment reversed.
Bloodworth, J., concurs. Luke, J., dissents as to the ruling stated in the Sd headnole.