FORT CAROLINE ORCHIDS, INC., APPELLANT,

v.

WINSTON F. C. GUEST AND LUCY C. GUEST, APPELLEES

SHIVERS, Judge.

This appeal is the result of the second lawsuit between the appellant and the appellees concerning a group of orchid plants which appellant delivered to appellees on January 3, 1974. In the first of these lawsuits, appellant filed a complaint in the Circuit Court of Duval County, Florida, seeking damages for goods sold and delivered. The goods which were alleged to have been sold to the appellees were the same orchid plants which appellant, in this action, alleges were converted by appellees. After a trial in the first case, the court found that the appellees had not agreed to purchase the plants. The trial court found in material part that:

“There was no meeting of the minds on the purchase and sale of the schedule ‘A’ plants and such plants are the property of the plaintiff.”

At the time of the trial in the first case, the orchid plants were in the possession of the appellees. The appellant thereafter filed a second suit, alleging that appellees had converted the orchid plants. Following trial without a jury, the court made the following findings:

“ . . .4. After the final judgment (following the first lawsuit) was entered, and the decision was made not to appeal said judgment, the attorney for the plaintiff inquired of counsel for the defendants when the plaintiff could pick up the orchids from the defendants. Subsequently, counsel for the plaintiff inquired of counsel for the defendants on two separate occasions when plaintiff could pick up the orchids from the defendants. The attorney for the defendants never did say when the plaintiff or his agents could get the plants.

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6. The original possession of the plants by the defendants was lawful. Under these conditions, a demand by the plaintiff and refusal by the defendants are necessary prerequisites to conversions. 7 Fla. Jur., Conversion, Section 17 (P. 280).

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8. The inquiries to defendants’ agent did not meet the requirements of legal demand.

9. The plaintiff has failed to meet the burden of proof necessary to prove an action in conversion.”

The court thereafter entered judgment in favor of the appellees and this appeal followed.

The demand relied upon by appellant consisted of three inquiries of the lawyer who represented appellees in the first lawsuit couched in the following terms:

“Will you please tell me when my client can pick up the orchids from your clients?”

We appreciate the courteous approach taken by counsel for appellant. We are of the opinion, however, and so hold, that counsel for appellant should have taken the further step of making a formal demand of the appellees for the return of the orchids. The demand should have been stated in absolute and unequivocal terms. The appellant should have demanded return of the orchids by a date certain. Our opinion is not to be construed as discouraging a demand couched in polite and civil terms.

The decision of the trial court will be affirmed.

BOOTH, J., concurs.

ERYIN, Acting C. J., specially concurs.

ERVIN, Acting Chief Judge,

specially concurring.

Had the request been made to defendants or their agent who had authority to act in regard to the request, I think the failure to comply with the request would meet the requirement that a plaintiff must first demand the return of property which has been lawfully placed in the possession of a defendant. Under the particular facts, I do not think an unequivocal demand was necessary since an action had previously been brought by appellant seeking damages for goods allegedly sold and delivered to the defendants. While the court held in favor of defendants on the breach of contract action, stating there was no meeting of minds as to the purchase of the plants, it nevertheless held that the plants remained the property of plaintiff. Defendants were aware of this finding, and neither party took an appeal from the judgment entered in the prior case. Given that additional fact, I think the request for the return of the plants, had it been properly conveyed to defendants, would have been sufficient. No particular formality is required in making ' a demand for the return of property. 18 Am.Jur.2d, Conversion, § 64 (1965). Moreover a request may, within a given context, be the equivalent of a demand. See Ellis v. Kroger Grocery and Baking Company, 159 Kan. 213, 152 P. 2d 860 (1944).

The problem with the demand made by appellant is that the person to whom it was given had no authority to deliver the property to appellant. The demand was made to the attorney who represented the defendants in the breach of contract action. He had no right of control over the plants which were at the time of the demand located in another city. Before the principal may be held liable for the refusal of its agent to respond to a demand, it must be shown that the agent had either possession or authority to deliver App. 395 (1889); Hammond v. Du Bois, 131 Md. 116, 101 A. 612 (1917); Mount v. Derick, 5 Hill 455 (1843). I therefore concur in the affirmance.