concurring:
I concur in the judgment of the court but do not reach two issues the court addresses. I rely, rather, on the trustee’s waivers.
The trustee by his conduct waived the question whether the contract was executo-ry by treating the contract as executory. He stipulated in open court and later in writing that he wanted to assume the contract and sought the court’s permission to do so. He later delivered to Four Seasons his written notice of assumption and for years thereafter acted as though the contract were executory. In his complaint filed in the Bankruptcy Court for the Southern District of California on December 17, 1987 (of which we may take judicial notice) the trustee states categorically, “On *1369January 22, 1982, the trustee assumed the Contract.” Whether we construe the trustee’s conduct as constituting a waiver or hold that it created an estoppel since Four Seasons relied upon it, In re J.F. Hink & Son, 815 F.2d 1314, 1318 (9th Cir.1987), the trustee is not free to raise the question in this court as to whether or not the contract was executory and assumed by him.
The trustee also waived the question of whether the interest on the state judgment is entitled to priority. We need not decide on this appeal whether as a matter of law such interest would have priority. Its priority in this case has been contested too late for the issue to be re-decided here.