Bird v. Kitchens

I am not certain that "partnership" was the proper word for the Chancellor to use in connection with the relationship between Kitchens and Wilson. Perhaps not. *Page 618 However, to me a preponderance of the evidence is persuasive that in respect of numerous transactions Kitchens and Wilson were jointly interested, and were not — as the majority opinion finds — at all times dealing at arm's length. In some cases there was apparent mutuality when purchases were made, hence each occupied toward the other a position of trust. The Chancellor found that a master should examine all of these transactions, take proof regarding their origin, the duration of ownership, and final disposition of the holdings, and state an account. I do not think the record before us is sufficient for determination of the equities, hence in this action I would merely sustain what in effect the Chancellor found generally — that a trust relationship existed, requiring all of the facts to be developed. It would then be appropriate to review the facts and say whether liability exists.