It is contended by the plaintiff in error that the appeal was a nullity and that the court erred in overruling the motion to dismiss the same. Where the purported surety on an appeal is a corporation, as here, and its signature is made by one who purports to act as its attorney in fact, the appeal is subject to dismissal unless the bond is accompanied by a power of attorney showing the authority of the one purporting to act for the corporation in executing the bond. The power of attorney here was dependent on the resolution of the executive committee of the American Surety Company of New York, which provided: "That one of the Resident Vice-Presidents, and one of the Resident Assistant Secretaries of this Company, at Atlanta, in the State of Georgia, be and they are hereby authorized and empowered to make, execute and deliver, in behalf of the Company, unto such person or persons in the States of South Carolina, Florida, Alabama and Georgia, as they may select, its power of attorney constituting and appointing each such person its attorney in fact, with full power and authority to make, execute and deliver, for it, in its name and in its behalf, as surety, any particular bond or undertaking that may be required in said States of South Carolina, Florida, Alabama and Georgia, the nature of such bond or undertaking to be in each instance specified in such power of attorney." The power of attorney to T. A. Nutt was signed in the name of American Surety Company of New York by E. M. Brown, Resident Vice-President, and W. H. Turner, Resident Assistant Secretary, but it was issued in blank, that is, the nature of the bond or undertaking that might be executed by virtue thereof was not specified in such power of attorney as was required by the resolution of the executive committee above referred to. But the defendant in error contends that the appeal bond was amendable and that the amendment attaching *Page 754 thereto the two letters to T. A. Nutt, agent, from E. M. Brown, resident assistant secretary, dated October 13 and 17, 1941, showed authority on the part of T. A. Nutt to execute the bond, and that the bond was valid. The substance of the letter of October 13, 1941, was that it might be necessary to give a cost bond in connection with the estate of Asa Shannon McCoy, incompetent, that the bond probably would be in behalf of Vaux Owen, next friend of McCoy, that if he was called on it would be in order for him to execute such a bond, and the letter then states: "We are enclosing a special Power of Attorney with a wafer seal and should the bond be required this Power of Attorney must be attached thereto and the wafer seal should be put on the bond." This letter was signed only by the resident assistant secretary, and showed that the power of attorney, not the letter, was to be Nutt's authority for executing a bond, and that the power of attorney was to be attached to the bond. The resolution of the executive committee of the American Surety Company of New York did not confer power on a resident assistant secretary to authorize an agent by letter to execute a bond. The letter of October 17 was an acknowledgment by Brown as resident assistant secretary of the receipt of the bond. "An appeal bond may be amended and new security given if necessary." Code, § 6-106. This, however, does not mean that a bond which is a nullity can be amended, but only when it is irregular or deficient. Also our decisions are to the effect that a bond which is a nullity can not be amended. See Maddox v. Waldrop, 60 Ga. App. 702 (4 S.E.2d, 684). The appellant did not have the right by amendment to change or add to the power of attorney which was executed by the American Surety Company of New York to T. A. Nutt. It will be noticed that he asked in the amendment, "that he be permitted to insert in the original bond herein after the words `as follows' the words `costs, appeal bond in the above stated case and for such further costs as may accrue by reason of said appeal in said case.'" The words "as follows" do not appear in the appeal bond. It was the defective power of attorney which failed to confer authority on the agent, Nutt, to issue the particular bond, which rendered the appeal bond invalid, and, as above stated, the appellant, Vaux Owen, was without authority to change in any way or to add to the contents of that limited power of attorney. That was a matter entirely between *Page 755 the American Surety Company of New York and T. A. Nutt. We do not think the amendment changed the status in respect to the appeal bond. The appeal bond was signed in the name of the AmericanSurety Company, by T. A. Nutt, attorney in fact. The resolution of the executive committee of the American Surety Company of New York empowered the resident vice-president and resident assistant secretary to select an agent and to execute to him its power of attorney authorizing him as its attorney in fact to execute for it, in its name and behalf, any particular bond or undertaking,"the nature of such bond or undertaking to be in each instancespecified in each power of attorney." It is a general principle of law that a power of attorney is to be strictly construed. An agent who receives his authority by virtue of a power of attorney can only do what the power of attorney authorizes him to do. He can not go beyond the power or authority conferred by such instrument or do a different thing to that which is specified therein. If the American Surety Company of New York required that a power of attorney issued for the execution of a bond should have the nature of such bond or undertaking in each instance specified in each power of attorney, then this was evidently intended to be a vital and essential part of such power of attorney. In the absence of this essential requirement it would seem that the agent was without authority to issue the bond; and that it is idle talk and speculation to say that this provision does not mean what it says, or does not confer any power on the attorney, but only limits his authority. We think this is an essential provision of the power of attorney, which the American Surety Company of New York authorized to be issued to an agent, and not merely a directory provision. This instrument has at the top of it in capital letters these words: "Limited power of attorney." There is nothing in Cotton States Life Insurance Co. v. Mallard, 57 Ga. 64, that authorizes a holding in the present case that the insertion in the power of attorney of the nature of the bond or undertaking to be executed was not essential to the validity of such instrument, in order to authorize the agent or attorney to issue such bond.
The appeal bond was signed as surety by the "American Surety Company, by T. A. Nutt, attorney in fact," and it is contended by the plaintiff in error that the bond is void for this reason, as the purported power of attorney was executed by the American Surety *Page 756 Company of New York, a different corporation. It is recited in the body of the bond that "Vaux Owen, as principal, and American Surety Company as securities, acknowledge themselves held and firmly bound unto the appellee," etc. But the name, American Surety Company of New York, does not appear anywhere in the bond. In these circumstances, if the American Surety Company and the American Surety Company of New York are separate corporations, then certainly the bond in question would not be a binding obligation on the American Surety Company of New York. If the power of attorney had been sufficient to confer authority on the agent to execute the appeal bond, and had the name of the American Surety Company of New York been entered in the body of the bond, and had the evidence been sufficient to show that it was the intention of the parties for the American Surety Company of New York to make the bond and become liable thereon as surety, it might be argued with some merit that the bond was good although signed in the name of American Surety Company.
In re Goldville Manufacturing Co., 118 Fed. 892, a mortgage and bonds secured thereby were signed in the name of Goldville Manufacturing Company, whereas the corporate name was Goldville Manufacturing Company of Goldville, S.C. The mortgage recited that it was the mortgage of the Goldville Manufacturing Company, "a corporation duly organized under the laws of the State of South Carolina on the 23d day of October, 1900, having its principal place of business at Goldville, Laurens County, S.C." It was shown that there was no other corporation located at Goldville, and that the officers who executed the mortgage and bonds were never officers of any other company. There was also evidence going to show that the incorporators, J. S. Blalock and his son L. W. C. Blalock and his daughter M. E. Browning, before incorporating, conducted the business as and in the name of Goldville Manufacturing Company, and that they incorporated the business in October 1900, and were the sole stockholders. The corporate proceedings for issuing the bonds and securing the same by mortgage were also in evidence. In these circumstances, the court held, that the proof was clear that the bonds and mortgage, while signed, "Goldville Manufacturing Company," were in fact the bonds and mortgage of the Goldville Manufacturing Company of Goldville, S.C. In Underhill v. Santa Barbara Land, Building, and Improvement *Page 757 Co., 93 Cal. 300, the officers who executed the note and mortgage described themselves as the officers of the "Santa Barbara Land and Improvement Company," whereas the corporate name was Santa Barbara Land, Building, and Improvement Company. The body of the note expressed the promise of the corporation, fully and properly named, to pay, and the mortgage expressly purported to be the mortgage of "Santa Barbara Land, Building, and Improvement Company." The execution of the papers was also attested by the proper officers by the seal of the corporation. Furthermore, the California Civil Code provided that "the misnomer of a corporation in any written instrument does not invalidate the instrument, if it can be reasonably ascertained from it what corporation is intended." It was held that the recitals of the note and mortgage, together with the certificate of acknowledgement, were sufficient to show what corporation executed the note and mortgage. So it will be seen that these two foreign cases are distinguishable on their facts from the case at bar, and the rulings there made would not be applicable under the facts of the present case. As above stated, the name of the American Surety Company of New York nowhere appeared in the bond in question, and there was no extraneous evidence introduced in connection therewith. The only purported authority for the agent, Nutt, to sign any bond was the limited power of attorney above referred to and which was not issued in accordance with the resolution of the executive committee of the American Surety Company of New York by having the nature of the bond therein specified, but was issued in blank. Therefore, I am of the opinion that the appeal bond was a nullity for two reasons: (1) The nature of the bond or undertaking was not specified in the power of attorney as required by the resolution of the executive committee of the American Surety Company of New York; and (2) the bond was signed in the name of the American Surety Company, whereas the purported power of attorney provided for the execution of a bond in the name of the American Surety Company of New York.
In these circumstances, I am of the opinion that T. A. Nutt was without legal authority as attorney in fact to execute the appeal bond in question, and that the court erred in overruling the motion to dismiss the appeal. *Page 758