On Rehearing.
Whitfield, J.A rehearing was granted herein to determine whether a remittitur should be allowed as an alternative for a reversal of the judgment for a new trial.
Where liability is shown and verdict and judgment are rendered for an excessive amount, and the court can satisfactorily determine from the record the amount of the excess or the amount properly recoverable whether in tort or contract, the court may authorize a remittitur of the excess as an alternative for a reversal. Pensacola Sanitarium v. Wilkins, 68 Fla. 447, 67 South. Rep. 124; Postal Telegraph Cable Co. v. Scott, 76 Fla. 336, 79 South. Rep. 767; McLean v. Spratt, 20 Fla. 515; Gunning v. Heron, 25 Fla. 846, 6 South. Rep. 855; Savannah, F. & W. Ry. Co. v. Davis, 25 Fla. 917, 7 South. Rep. 29; Florida Ry. & Nav. *259Co. v. Webster, 25 Fla. 394, 5 South. Rep. 714; Arnau v. First Nat. Bank, 36 Fla. 395, 18 South. Rep. 790; Florida Cent. & P. R. Co. v. Seymour, 44 Fla. 557, 33 South. Rep. 424; Florida Cent. & P. R. Co. v. Foxworth, 45 Fla. 278, 34 South. Rep. 270; Seaboard Air Line Ry. v. Simon, 56 Fla. 545, 47 South. Rep. 1001; Saunders Transfer Co. v. Underwood, 77 Fla. 167, 81 South. Rep. 105; Louisville & N. R. Co. v. Frank, 76 Fla. 384, 80 South. Rep. 60; Luce v. Lee, 79 Fla. 693, 84 South. Rep. 726; Tampa Elec. Co. v. Gaffga, 81 Fla. 268, 87 South. Rep. 922; Lindsey Turpentine Co. v. Soule. 81 Fla. 339, 87 South. Rep. 782; Seaboard Air Line Ry. Co. v. Prewitt, 81 Fla. 423, 88 South. Rep. 160; Atlantic Coast Line R. Co. v. Conant, 79 Fla. 668, 84 South. Rep. 688; Empire Drug Co. v. Smith, 78 Fla. 594, 83 South. Rep. 458; Standard Growers’ Exchange v. Martin, 80 Fla. 864, 87 South. Rep. 54; Nolan v. Moore, 81 Fla. 600, 88 South. Rep. 601; Florida East Coast R. Co. v. Schumacher, 63 Fla. 137, 57 South. Rep. 603; Florida East Coast R. Co. v. Hayes, 67 Fla. 101, 64 South. Rep. 504; Atlantic Coast Line R. Co. v. Pipkin, 64 Fla. 24, 59 South. Rep. 564; Atlantic Coast Line R. Co. v. Shouse; Tampa Electric Co. v. Limpus and Lunham v. DeMerritt, recently decided. See also Washington & G. R. Co. v. Harmon’s Adm’r., 147 U. S. 571, 13 Sup. Ct. Rep. 557; Hansen v. Boyd, 161 U. S. 397, 16 Sup. Ct. Rep. 571.
If the action is ex contractu on items that are severable, and on appropriate issues liability is shown as to some and not to other items, a remittitur may be permitted. See Greenblatt v. McCall & Co., 67 Fla. 165, 64 South Rep. 748; Lewis v. Meginniss, 30 Fla. 419, 12 South. Rep. 19; Turner v. Adams, 39 Fla. 86, 21 South. Rep. 575; National Surety Co. v. Williams, 74 Fla. 446, 77 South. Rep. 212.
In all the above cases the liability of the defendant for *260the amount for which the judgment was affirmed, upon remittitur, was clearly established.
Where the judgment, or the verdict on which the judgment is based, is in excess of the damages proved and the evidence clearly shows the amount for which judgment should have been rendered, the judgment may be affirmed on condition that plaintiff remit the excessive part of his recovery. 4 C. J. p. 1142. But where liability of the defendant is not clearly shown, a remittitur will not be awarded. Atlantic Coast Line R. Co. v. Wilson, 81 Fla. 117, 87 South. Rep. 314.
In directing that a remittitur be entered for a stated amount upon a verdict awarding damages, and that upon failure to do so a new trial be granted, the court, whether trial or appellate, does not usurp the functions of a jury or deny to either party a right to a jury trial. The power and duty rests in the court to determine the validity of the verdict both as to its nature and amount; and in ordering a remittitur, the court merely adjudges that the amount of the verdict ordered to be remitted is, on the pleadings and evidence, illegal. Atlantic Coast Line R. Co. v. Pipkin, 64 Fla. 24, 59 South. Rep. 564; Arkansas Val. Land & Cattle Co. v. Mann, 130 U. S. 69, 9 Sup. Ct. Rep. 458; Koenigsberger v. Richmond Silver Min. Co., 158 U. S. 41, text 52, 15 Sup. Ct. Rep. 751.
In this case the action was on a contract of employment and under the issues made, verdict and judgment were rendered under the rulings of the trial court which in effect were that the plaintiff was entitled to commissions on sales of all the lands referred to in the contract if all such lands were sold even though some of the lands were sold by the owner of the lands and the employee had no part in such sales. This court held that under the contract the plaintiff *261was entitled to commissions only on the sales of lands made by him, or in which sales he had a proper part, and as the verdict had no supporting testimony, in effect found that all the lands referred to in the contract had been sold, the commissions of the plaintiff for sales of land made by him under the contract should be at the rate fixed by the contract conditioned upon the sale of all the lands referred to in the contract of employment.
It is established that a portion of the lands were sold to one Jeffries, and that the plaintiff had “not a thing” to do with the sale to Jeffries. There is evidence that another portion of the lands were sold to Healy by the plaintiff.
The defendant below insists that as the main issues submitted to the jury were whether all the lands-had been- sold by either the plaintiff or by the defendant, and the amount of the commissions due the plaintiff as commissions on all such sales whether the plaintiff or the defendant made the sales, the jury were misled by the rulings of the court and did not determine whether any, or if any how many, of-the lands were sold by the plaintiff, so that a remittitur would be unjust to the defendant.
The plaintiff below contends in effect that on the issues made, the evidence clearly shows that the Healy sale was made by the plaintiff, and that the plaintiff being willing to enter a remittitur for the portion of the judgment covering commissions on sales made by the defendant in which sales the plaintiff had no part, the court should permit such a remittitur and affirm the judgment for the amount of commissions due the plaintiff on sales of lands that the evidence shows were made by the plaintiff.
The main opinion of this court construed the contract of *262employment, and in applying the contract as construed, assumed the fact involved in the record, that all the lands in both counties had been sold, so as to entitle the plaintiff to the commissions that may be covered by the contract as construed by the court.
The construction put upon the contract of employment by the rulings of the trial court, i. e. that the plaintiff was entitled to commissions on all sales of the lands whether made by the plaintiff or by the defendant rendered immaterial a finding by the jury whether any or all of the lands referred to in the contract of employment were in fact sold by the plaintiff; and if the contract required the plaintiff to consummate the sales of the lands by himself or by his own means, it could not be said on this record, in view of the conflicts in the testimony as to the sale' made to Healy, that it is clearly shown or definitely found that the plaintiff alone did sell specific portions of the lands to Healy and could have sold to him 800 acres more, even though it does appear that by the sale made to Jeffries by the defendant of ‘ ‘ all of the Lee county lands, ’ ’ the provision of the contract was satisfied which states that “if neither of the company holdings are disposed of in full, the entire commission fails and. the salary mentioned above is to be your (plaintiff’s) full compensation.”
But the contract of employment clearly contemplated that the plaintiff was to use the defendant’s facilities and to co-operate with other officers and employees of the defendant company in making sales of the lands referred to in the employment contract; and this necessarily gives the plaintiff a right to commissions on consummated sales of lands in which he in good faith and purpose participated pursuant to the contract. As to the sale of lands to Jeffries, the plaintiff testified that he had no part whatever *263therein, consequently he cannot recover commissions for that sale.
It is, however, made clear by the evidence that the plaintiff did have a substantial and appreciable part in making the sale of a portion of the lands toi Healy that was eventually approved and made effective by the defendant company, which under the contract, entitles the plaintiff to commissions on that sale, provided all the lands had been sold and this latter proposition under the issues made and the rulings of the court, is determined by the jury on the conflicting evidence.
The provision in the employment contract that the price shall be “twenty-one ($21.00) dollars net for the DeSoto County land, no deduction or commissions off to any one but yourself,” merely excludes deduction from the stated prices and commissions to any one except the plaintiff. The DeSoto County lands that had not been sold by the defendant, were sold for twenty-five ($25.00) dollars per acre.
The president of the defendant company testified that a sale of the lands to Healy was eventually approved by the company at twenty-five ($25.00) dollars per acre and it is not shown or suggested that the approved contract contained any deductions or commissions or other matter affecting the price of twenty-five ($25.00) dollars per acre, even if such provisions except as to deductions in price or commissions to others than the plaintiff would affect the plaintiff’s right under the employment contract to the commissions provided for therein for the sale or “disposal” of lands referred to in the contract, in which sales or disposals the plaintiff had a part pursuant to the contract.
Section 4 of the Declaration of Rights of the Constitu*264tion provides that ‘ ‘ right and justice shall be administered without sale, denial or delay;” and when by due course of law, a severable portion of a claim or demand has been proven under such issues that could not have prejudiced the defendant as to the severable portion of the claim or demand that has been clearly and fairly established, such established portion should be enforced by appropriate, procedure of remittitur or otherwise, in order that “right and justice shall be administered without * delay,” when the remainder of the plaintiff’s claim or demand is not duly proven or is shown to be untenable.
It is considered, ordered and adjudged that if within thirty days the plaintiff below enters a remittitur, of $36,-898.75 of the total amount of $61,884.03 contained in the judgment, the judgment for the remainder, or for $24,985,-28, shall stand approved; otherwise, the judgment will stand reversed for a new trial.
Browne, C. J., and Taylor, Ellis and West, J. J., concur.