But what constitutes a broker's full performance depends on the exact agreement between the broker and the seller. Olson v. Penkert, 252 Minn. 334, 342, 90 N.W.2d 193, 200 (1958). In Olson, we said:
The relationship is one of contract. See, Olson v. Penkert, 252 Minn. 334, 90 N.W.2d 193 (1958). To maintain a claim for his commission, a broker must show that he has procured a purchaser at the stipulated price and in accordance with the employment terms or that the principal has deprived him of the opportunity to do so without cause.
The issue is whether a brokerage commission is payable on a firm commitment that would have been consummated except for defendants' furnishing of false information to the mortgagee contrary to a condition of the commitment. This court has stated in Olson v. Penkert, 252 Minn. 334, 343, 90 N.W.2d 193, 200: "We think the rule well established that, if the efforts of the broker are rendered a failure by the fault of the employer, the broker does not lose his commission.
Further, [an] executed contract is frequently meant [to mean] one that has been fully performed by both parties." Id.; Olson v. Penkert, 252 Minn. 334, 347 n. 6, 90 N.W.2d 193, 203 n. 6 (1958) (stating that the word executed, when applied to a contract, "includes delivery and implies complete contract"). There was not an executed parking-ramp lease because the lease is not complete. The lease includes no effective date, no date regarding commencement or completion of the parking ramp, and necessary governmental approvals were lacking. Therefore, the district court did not err in granting respondent's motion for summary judgment.
Accordingly, appellants can withstand summary judgment only by producing evidence that Roess failed to disclose "all facts within his knowledge affecting the rights or interests of the principal in the sale." See Olson v. Penkert, 252 Minn. 334, 342, 90 N.W.2d 193, 200 (1958). A fiduciary has a duty to disclose material facts and may be held liable for remaining silent.
In other areas, courts have concluded that "[p]arties may by mutual consent modify existing employment contracts without consideration." Freeman, 334 N.W.2d at 630; see Olson v. Penkert, 252 Minn. 334, 347, 90 N.W.2d 193, 203 (1958). In cases in which an employer alters the terms of an employment contract for an at-will employee after employment begins and the employee has knowledge of the changed terms, the courts have found that continued employment is sufficient consideration for the new contract.
"This rule, of necessity, depends on the agreement of the parties." Olson v. Penkert, 252 Minn. 334, 342, 90 N.W.2d 193, 200 (1958). Absent ambiguity, the construction of a contract is a question of law.
The Brennans contend that the second subrogation agreement signed by only William is a substitute agreement and has modified the original subrogation agreement. In Olson v. Penkert, 252 Minn. 334, 90 N.W.2d 193 (1958), the Minnesota Supreme Court held: Parties can alter their contract by mutual consent, and this requires no new consideration, for it is merely the substitution of a new contract for the old one, and this is of itself a sufficient consideration for the new.
Auge's second counterargument is based on the procuring-cause doctrine. The idea is that once a salesperson has completed negotiations, an employer cannot "deprive" him "of compensation for his ... services," Neumeier v. Sperzel , 223 Minn. 60, 25 N.W.2d 651, 655 (1946) (quotation marks omitted), absent an agreement that "stipulate[s] to the contrary," Olson v. Penkert , 252 Minn. 334, 90 N.W.2d 193, 201 (1958). The trouble for Auge is that his pay was set by an agreement, the 2017 Pay Program, even if he now thinks it shortchanged him.
In making the determination, the “surrounding facts and circumstances in the context of the entire transaction, including the purpose, subject matter, and nature of it” are relevant. Morrisette, 486 N.W.2d at 427 (quoting Capital Warehouse Co. v. McGill–Warner–Farnham Co., 276 Minn. 108, 149 N.W.2d 31, 35 (1967)). We note that although the facts in this case seem to raise contract modification standards, in Minnesota, “[p]arties can alter their contract by mutual consent, and this ... is merely the substitution of a new contract for the old one.” Olson v. Penkert, 252 Minn. 334, 90 N.W.2d 193, 203 (1958) (citation omitted). Accordingly, our analysis focuses on contract creation.