J. E. Toney, Sr., was not served witb process and from tbe record was not a necessary party to tbe action nor a party to tbe contract in controversy. There was no evidence on tbe record tbat be was an agent of J. E. Toney, Jr., and bad any authority to extend time to plaintiff Bank to fulfill its contract witb J. E. Toney, Jr.
It nowhere appears in tbe record tbat "W. R. Hampton has any en-foreible interest in tbe matter. Tbe title to tbe property is not in him and be has signed nothing. It nowhere appears in tbe record tbat J. E. Toney, Sr., has any enforcible interest in tbe matter. Tbe only real parties are tbe Branch Banking & Trust Company and J. E. Toney, Jr. Tbe Branch Banking & Trust Company did not appeal from tbe judgment rendered in tbe court below. Tbe only exception and assignment of error is tbat made by "W. R. Hampton to tbe judgment as signed.
Tbe answer is not denied and no issues arose on tbe pleading to be submitted to a jury. The letter of 15 October, 1937, says, in part: “I am to inspect and pass upon tbe deed and title policy before delivery of any of tbe papers and in tbe event tbat tbe same for any reason are not approved, then tbe papers herewith banded to you are to be returned to Mr. Toney and the whole transaction called off.” Under this agreement tbe papers were delivered and accepted by plaintiff Branch Banking & Trust Company under tbe terms and stipulations set forth in tbe letter. On 9 December, 1937, "W. L. Whitley received from J. E. Toney, Jr., tbe following letter: “Advise Bank we will have to call off trade. They have bad plenty time to receive insurance title. Have Bank send me check by return mail. Send me statement for your work.” "Whitley immediately notified tbe plaintiff Bank: “I understand therefrom tbat Mr. Toney wishes tbe check which be deposited witb you back and wishes now to abandon tbe matter, tbe seller having failed to comply witb tbe terms of tbe agreement.”
Tbe defendant J. E. Toney, Jr., bad tbe right under tbe contract witb tbe Bank to reject tbe “Interim Title Insurance Binder” which be did. "We see no arbitrary or unreasonable conduct on tbe part of J. E. Toney, *211Jr. He was patient and on bis part used due care to perform bis part of tbe contract and was met by delay for a,long time by tbe Bank. Tbe Bank bas abandoned its appeal. We can find from tbe record no cause of action on tbe part of W. R. Hampton tbat entitles bim to be beard.
We tbink tbe judgment must be
Affirmed.