An action cannot be maintained upon the unauthorized promise of officers of a corporation to pay to a mortgagor the amount in excess of the mortgage indebtedness realized from a sale of the premises after the expiration of the year of redemption. A judgment can be attacked for a defect therein only in a direct proceeding instituted for the purpose.
CHASE, J.
The defendants had not authorized their president and treasurer to contract in their behalf. So far as appears, there was no course of dealing from which authority could be inferred. The officers did not have authority by virtue of their offices. Without action by the corporation specially conferring it, they had no more authority in this respect than any other member of the corporation. P. S., c. 149, ss. 3, 4; 2 Cook Stock Stockh., ss. 716, 717; Wait v. Association, 66 N.H. 581. Their assurances to the plaintiff, therefore, were not assurances of the corporation and cannot bind it, even if they were sufficient in all other respects to constitute a contract. Neither do they bind the corporation by way of estoppel. One cannot be estopped by an act which he did not do himself nor authorize another to do in his behalf. This is as true of a corporation as of a natural person.
The plaintiff is not at liberty to attack the judgment recovered in the former action on account of the defect therein. He can do that only in a direct proceeding instituted for the purpose. Van Fleet Col. At. 23; Clough v. Moore, 63 N.H. 111. In such proceeding the defect might be cured by amendment (Brown v. West, 65 N.H. 187); and it probably would be, since it appears that the plaintiff has not suffered any injury from the defect.
Judgment for the defendants.
PARSONS, J., did not sit: the others concurred.