dissenting:
This case is an appeal from a final judgment of the Circuit Court of Wood County. The final judgment set aside a jury verdict for the plaintiff and granted a new trial to the defendant. The majority finds the trial court acted incorrectly in setting aside the verdict and granting a new trial; accordingly, they would reverse the judgment below.
I disagree with the result reached by the majority, and I find it necessary to file this dissent.
On December 5, 1975, the jury returned a verdict for the plaintiff and against the defendant of $59,191.84 as to the “seven Morlang projects.” This sum is consistent with the following portion of an instruction offered by plaintiff and given by the court:
On the other hand, if you believe from a preponderance of the evidence that Charles G. Rhodes and the defendant, by an through its employee, L. W. McKenzie, Jr., had a meeting of their minds, and agreed that Charles G. Rhodes was to receive 5% of the net receipts from the Morlang projects, then you should find for the plaintiff, Charles G. Rhodes, upon the issues joined as to the Morlang projects and allow him *679$73,990.65 less the sum of $14,798.81, which the defendant has paid to the plaintiff, and return a verdict in favor of the plaintiff and against the defendant in the amount of $59,191.84 as to the Morlang projects.
It is certain that the jury based their verdict on a 5% commission, since this is consistent with the undisputed evidence that the total sale price of the projects was $1,479,813.00.
The defendant’s motion to set aside the verdict and grant a new trial was granted. In the memorandum opinion accompanying the judgment order the trial court states:
The case was tried as to the seven Morlang projects, on the theory that the written contract of November 10, 1967, had expired by its own terms on December 31, 1968, and was not in force and effect in 1969 when the Morlang projects were sold, and that the parties had orally negotiated the commission, which the plaintiff was to receive for the Morlang Projects.
The Court then held: “I am of the opinion that the written contract was the contract between the parties, as to the seven Morlang projects, and that the case, as to the seven Morlang projects, was tried contrary to the law, and the Jury instructed contrary to the law.”
In reaching this conclusion, the trial court relied upon the following rule of law:
It is the general rule ... that when, upon the expiration of a contract of employment for a definite term, the employee continues to render the same services as he rendered during the term of the contract without explicitly entering into any new ágreement, it will be presumed prima facie that he is serving under a new contract having the same terms and conditions as the original one. This presumption applies to both the duration of, and remuneration for, the continued employment. It may be rebutted by evidence showing a change of the terms of the contract, or by *680proof of facts and circumstances showing that the parties understood that the terms of the old contract were not to apply to the continued service. 53 Am. Jur.2d Master and Servant § 23 at 99 (1970).
It was upon this reasoning and law that the trial court sustained the defendant’s motion to set aside the jury verdict and grant a new trial. The general rule relied on is the common law rule adhered to in Virginia. See, Norfolk Hosiery & Underwear Mills Co. v. Westheimer, 121 Va. 130, 92 S.E. 922 (1917); 12B M.J. Master & Servant, § 7 (1978); 56 C.J.S. Master & Servant § 118 (1948).
Although the plaintiff’s conduct of the trial was less than lucid, I agree with the trial judge’s opinion that the written contract was the contract of the parties because the evidence failed to prove the parties orally agreed to a “new contract” or a modification of the written contract. Accordingly, I agree with the trial judge’s finding that the jury was instructed contrary to the law of the case. Furthermore, I believe that even if one were to hold the evidence established an oral modification of the written contract and the case was tried on that theory, the verdict could not stand because the jury was not fully instructed on the theory of an oral agreement modifying the written contract’s terms. Plaintiff’s instruction did not fully state the law on this point! Specifically, the jury was not instructed as to the general rule of law cited above, and was not told that it is presumed prima facie that the terms of the original contract continued until plaintiff met the burden of rebutting that presumption. The defendant was clearly prejudiced because the instructions did not require the jury to find that plaintiff had met the required burden of proof. For these reasons I believe the trial judge was correct in granting the defendant’s motion to set aside the verdict and grant a new trial, and I would affirm the judgment below.
“The judgment of a trial court in setting aside a verdict and awarding a new trial is entitled to peculiar *681weight and its action in this respect will not be disturbed on appeal unless plainly unwarranted.” Syl. pt. 3, Young v. Duffield, 152 W. Va. 283, 162 S.E.2d 285 (1968).