¶1delivered the opinion of the court.
¶2With a few well understood exceptions, the law of mining partnerships is quite similar to the law governing ordinary trading partnerships. Among these exceptions is one which allows one member of a mining partnership to convey his interest in the mine and business to a stranger without dissolving the copartnership. This exception has grown out of the necessities of the case, which require the continuous working of mines in order that the same may be made profitable. So, likewise, it has been held that neither assignment, nor death, nor bankruptcy of the owner of an interest in a mining concern should operate to dissolve a copartnership existing *49for the purpose of working the mine. Another difference between a mining partnership and an ordinary trading partnership is that the former is not founded upon the delectus persones, while the latter is ; hence one mining partner has not the right to bind his associates to the same extent as a member of a trading partnership. Charles v. Eschleman, 5 Colo. 114; Manville v. Parks, 7 Colo. 128; Higgins v. Armstrong, 9 Colo. 47; Meagher v. Reed, 14 Colo. 385.
¶3In the case at bar the real estate was held by the individual members of the copartnership as tenants in common, while' the business of extracting the ores, etc., was conducted by the mining partnership; the undisputed evidence being that the parties were tenants in common in the ownership of the mines.
¶4Although the facts are undisputed, plaintiff in error quotes extensively from the case of Duryea v. Burt et al., 28 Cal. 569, and relied upon this and other California cases for the purpose of showing that the mining property belonged to the partnership ; the contention being that mining ground belonging to and worked by a mining partnership, if acquired for mining purposes, and purchased with partnership funds, or brought into the concern by individual members as a portion of the capital stock, is, in equity, for the purpose of the partnership debts, to be treated as partnership property. But in this case the mining claims were not purchased by partner-; ship funds, were not brought into the concern by the individual members as a portion of its capital stock, and hence did not belong to the mining partnership. Aside from the foregoing, this is not a suit instituted by outsiders to collect a partnership debt.
¶5The existence of a mining partnership for the purpose of working the mines, although the ownership of the real estate may be in the individual members of the copartnership, as tenants in common, is clearly recognized in the case of Duryea v. Burt, supra,as will be seen from the concurring opinion of Mr. Justice Sawyer:
¶6“ It may be that the claims before owned and purchased in severalty in undivided interests were held by them through; *50out their connection as tenants in common. Whether they were or were not is not distinctly found as a fact, and we should not be justified in determining the question from the facts found. Those interests were, doubtless, originally purchased as tenancies in common; but whether from the evidence before the court, and the manner in which the parties blended their interests in those claims with their subsequent purchases and in working the whole, the court would be justified in finding that they put in the claims originally held, with the new purchases as partnership property, it is not our province now to determine. This will be a fact to be determined on the new trial. If so, it became partnership property, and subject to all the incidents of such property. If not, and it was originally held and still continues to be held as a tenancy in common, then it was not partnership property, and the plaintiff has no claim to have the sum .due him from his cotenant or copartner in other matters charged upon it.”
¶7The contention of plaintiffs in error is that when defendant in error Weston became an owner of and interested in the real estate, and a member of the mining partnership, he became such owner eum onere, subject to the settlement of the partnership accounts, and subject to the payment of the partnership debts, of which the Minnie judgment, the expenses of the suit of The Colorado Smelting Company against Patrick et al., and the costs of the McLean suit, with attorneys’ fees and expenses, were a part.
¶8This contention of counsel is not supported by any adjudicated case, and, upon principle, we think that an incoming partner ought not to be liable, for debts contracted prior to his acquiring an interest in the property, and prior to his becoming a member of the mining partnership. Cases in which the incoming partner has been held liable may all be resolved to instances in which the real estate was either purchased by the partnership, with partnership funds, or was brought into the firm as a part of the capital stock by the individual members of the copartnership. In the case at bar, as we have seen, there is no evidence of a partnership in the ownership of the *51mines; the evidence being to the effect that an ordinary mining partnership was formed for the purpose of prospecting and working the properties.
¶9We are not concerned in this case nor do we decide what the rights of partnership creditors may be in equity to enforce their claims against the property of the firm or individual members thereof. We are only concerned with the law governing partners inter sese, and certainly, in the absence of an agreement to the contrary, the general rule is that an incoming partner does not become liable for debts contracted prior to the time he became a member of the partnership. This principle is elementary, and there is nothing in this case to bring the plaintiff Weston within any exception to the rule, and we therefore hold that he was not liable for any part of the Minnie judgment, or any part of the claim of The Colorado Smelting Company, or of McLean, or of the expenses of any of these suits.
¶10It is contended, however, that the court below erred in rendering a joint judgment against the defendants. It sufficiently appears from the evidence in this case that the defendants acted in concert in reference to these matters, and by their joint action caused the funds of the company to be used in the payment of obligations for which they were jointly and severally liable, and for which Weston was not liable. Under these circumstances, by a familiar principle, they became jointly and severally liable to him for the amounts thus diverted.
¶11There are a number of cross errors assigned. The first of these challenges the correctness of the judgment of the court below, denying the right of plaintiff to share in dividend No. 31. The evidence in regard to the condition of the company at the time this dividend was declared is quite uncertain. It appears, however, from this evidence that at the time this dividend was declared the company had no available funds with which to pay the same, but that, on the contrary, it had overdrawn its bank account to a large amount, and that this sum was needed to pay this overdraft, and pay the *52current expenses of the mine for the preceding month. Under these circumstances, we think the trial court was justified in holding that plaintiff was not entitled to participate in this dividend.
¶12The second assignment of cross error challenges the correctness of the finding of the district court, whereby the plaintiff was held liable for his proportionate share of the pay of W. F. Patrick,"as manager of the mine, and including his salary as financial manager. It is established by the evidence, beyond controversy, that Patrick discharged the duties of the two positions designated; that plaintiff had the advantage of his services and reaped, in the nature of dividends, the benefits of Mr. Patrick’s management. Under these circumstances, the trial court was justified in holding plaintiff liable for his proportionate share of Mr. Patrick’s salary, as manager of the mine, and also as financial manager.
¶13Moreover, the right of the majority to conduct the business of the copartnership must be upheld.
¶14The third assignment of cross error challenges the amount found due the plaintiff, and the amount of the judgment. By a clerical error the amount of the judgment is six hundred dollars ($600) less than it should have been, as will appear from the following statement:
¶15Paid on Minnie judgment, . . . $29,247.00
¶16Costs in same, ...... 490.48
¶17Costs and attorneys’ fees in McLean suit, . 5,566.90
¶18Reserve fund Colorado Smelting Company suit, 15,000.00
¶19Interest paid to bank on same, . . . 1,133.85
¶20Costs in same suit, ..... 743.95
¶21General attorney’s fees, .... 7,399.74
¶22$59,581.42
¶23Five sixty-fourths of which is 4,654.80
¶24Interest, as found, . . . . . ■ 650.95
¶25$5,305.75
¶26This error as to the amount does not entitle plaintiffs in error to a new trial, as there can be no dispute upon the evi*53dence as to the correct amount, and defendant in error makes no claim to additional interest by reason of the increase. The larger amount would increase the allowance for interest, and, this being waived, is to the benefit and not to the injury of plaintiffs in error.
¶27The finding and judgment of the co’urt below will be corrected in accordance with the foregoing statement, and as thus corrected it will stand affirmed.
¶28Affirmed.