(dissenting).
I respectfully dissent.
The majority claims the award of damages to Witte “exceeds his presentation to the jury.” A thorough examination of the record, however, proves that this statement is unfounded. The record shows a certified public accounting firm’s analysis of commissions payable to Witte totalling $77,-368.52. This total matches the amount Witte claimed for commissions payable. From there, Witte conceded at trial certain amounts should be deducted from that total — $7,573.57 for commissions claimed during receivership, $4,224.07 in cancelled sales, and $6,160.00 in unrecorded pay*853ments. The jury awarded Witte $59,-410.38, which is exactly $77,368.52 minus the deductions Witte admitted should be made. Witte’s “version of the facts,” therefore, matches the jury award.
The majority also asserts that Instruction No. 14 should not have been given to the jury. The record once again shows the error in the majority’s claim. The initial employment contract between Witte and Hills of Rest entitled Witte a $20,000 annual salary and a 15% commission on payments received on pre-need sales of merchandise. The contract became effective in May, 1979, and was to continue on an annual basis for each subsequent February 1 through January 31 period unless otherwise changed. A second contract was entered by the parties in August, 1984. During the time the initial contract was in force, Hills of Rest’s Board of Directors periodically initiated different pre-need sales programs applying various sales commission rates. No sales commission rates, however, were established by the board during the interim periods when pre-need sales campaigns were not in effect.
Instruction No. 14 correctly stated that if an employee continues working after his term expires, it is presumed the parties intended the terms of the contract to continue. SDCL 60-1-5; Jorgensen v. Midland Nat. Life Ins. Co., 71 S.D. 43, 48, 21 N.W.2d 54, 56 (1945). The majority, however, claims this instruction “did not have proper application to the facts ” since the agreement between Witte and Hills of Rest “changed several times over.” (Emphasis supplied). The majority’s claim parrots the argument offered by Hills of Rest which states that because of the instruction, the jury “simply gave Witte the 15% commission throughout the whole period.” This is simply not true. In determining the amount of Witte’s award, the jury used a balance sheet indicating commissions payable at rates of 15%, 10% and 5% according to each pre-need sales program and the applicable sales commission implemented by the board of directors. When the various pre-need sales campaigns were not in force, Hills of Rest itself used the 15% figure. Instruction No. 14 merely directed the jury to do that which was done by Hills of Rest — apply the original contract rate during the interim periods when pre-need sales programs were not in effect and no sales commission rates had been established by the board to cover those periods. In light of these facts, it can hardly be contended that Instruction No. 14 was inapplicable and that the trial court erred in giving the instruction to the jury. See Wheeldon v. Madison, 374 N.W.2d 367, 372 (S.D.1985); Black v. Gardner, 320 N.W.2d 153, 158 (S.D.1982); Wolf v. Graber, 303 N.W.2d 364, 366 (S.D.1981).
In a related argument, Hills of Rest claims that there should have been a “further instruction by which [the jury] could find any subsequent agreements between the Board of Directors and Witte constituted a revision of [the original contract] and controlled the relationship between the parties.” Hills of Rest then states this amounted to a “miscarriage of justice.” (Emphasis supplied). This argument ignores the fact that the jury did not use the 15% commission rate during the entire employment period. The jury award reflected not only the various rates applied on the balance sheet analysis of commissions payable but also the rate changes established in the board minutes.
The majority’s final claim is that the trial court erred by excluding Exhibits Nos. 25 and 26 from evidence. Although relevant, these exhibits were cumulative to the evidence adduced during the accountant’s extensive testimony regarding the parameters of his review and would have added little to the inquiry. The trial court did not act improperly by excluding the exhibits since the jury had already heard the evidence therein. Once is enough. SDCL 19-12-3; State v. Swallow, 405 N.W.2d 29, 37 (S.D.1987). See also Matter of Estate of Jones, 370 N.W.2d 201, 205 (S.D.1985).
While this case is difficult to decide, the record does not support the claims found in Hills’ brief or the majority opinion.
I would affirm.