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VND12/19/2003
v. Borstad, 231 N.W.2d 795 (N.D. 1975). The custom or usage must be proved as any other fact. Peterson v. McCarney, 254 N.W.2d 438 (N.D. 1977). Whether or not a custom or usage exists is a question of fact.
Hager v. Devils Lake Pub. Sch. Dist., 301 N.W.2d 630, 634 (N.D. 1981).
[ ] Because the language of the lease is not ambiguous, VND's argument regarding custom and usage need not be considered.
[ ] In Pfeifle v. Tanabe, this Court held:
A waiver occurs when a person voluntarily and intentionally relinquishes a known right or privilege. Hanson v. Cincinnati Life Ins. Co., 1997 ND 230, 13, 571 N.W.2d 363. Waiver may be established either by an express agreement or by inference from acts or conduct. Id. The existence of waiver generally is a question of fact, but if circumstances of an alleged waiver are admitted or clearly established and reasonable persons can draw only one conclusion from those circumstances, the existence of waiver is a question of law. Id. Waiver may be found from an unexplained delay in enforcing contractual rights or accepting performance different than called for by the contract. Dangerfield v. Markel, 252 N.W.2d 184, 191 (N.D. 1977).
2000 ND 219, * 18, 620 N.W.2d 167.
[ ] "Laches is a delay or lapse of time in commencing an action that works a disadvantage or prejudice to the adverse party because of a change in conditions during the delay." Williams County Social Services Bd. v. Falcon, 367 N.W.2d 170, 174 (N.D. 1985). In Diocese of Bismarck Trust v. Ramada, Inc., this Court held:
Laches does not arise from the passage of time alone, but is a delay in enforcing one's right which is prejudicial to another. Schmidt v. Schmidt, 540 N.W.2d 605, 608 (N.D. 1995); Wehner v. Schroeder, 354 N.W.2d 674, 676 (N.D. 1984). In addition to the passage of time, parties against whom a claim of laches is sought to be invoked must be actually or presumptively aware of their rights and must fail to assert those rights against parties who in good faith changed their position and cannot be restored to their former state. Wehner, 354 N.W.2d at 676.
553 N.W.2d 760, 767 (N.D. 1996).
[ ] Because Leevers is not asserting a right or trying to bring a claim, we conclude that laches and waiver do not apply.
[ ] As a matter of law, we conclude Leevers was not obligated to pay a pro-rata share of liability insurance. Leevers, however, stipulated it would nonetheless pay the liability insurance, having paid it in the past.
[ ] At trial, following off-the-record discussions between the court and counsel in chambers and before the first witness was called, Leevers stipulated it was obligated to pay the past due insurance premiums and all future premiums:
MR. RUTTEN: We won't stipulate that it is a material breach but will stipulate that - that the defendant would be obligated to pay that amount, whatever it is.
MR. SCHNEIDER: General liability premises portion of the insurance.
MR. RUTTEN: Right.
THE COURT: Whatever has been in existence from time memorial; right?
MR. RUTTEN: That's correct.
THE COURT: . . . t is still an open issue if you want it. But if you are willing to accept the stipulation -
MR. SCHNEIDER: We are willing to accept the stipulation that they agree that they have a legal duty, and they did, and would now be willing to pay all general premises portion of their pro-rata share. We reserve the right of arguing that it is a material breach and, of course, Mr. Rutten is going to argue that it is not a material breach.
THE COURT: Okay. I will a
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