concurring specially.
I am constrained to concur with the majority that the summary judgment in favor of appellee must be reversed because of my adherence to the philosophy that “it is indeed a great responsibility to say that ‘in truth there is nothing to be tried’ ” Holland v. Sanfax Corp., 106 Ga. App. 1 (126 SE2d 442) (1962). However because of the “fear” expressed by the dissent as to what the majority opinion is “impliedly based on,” I want to make it clear that I do not agree that, “all that need be shown here is either actual or constructive knowledge that Bassett used the plaintiff’s designs, and that the plaintiff was making a claim for royalties...”. To the contrary, I think it clear that where, as here, liability is asserted on the basis of an “implied” assumption, “all the circumstances must be considered, *250such as the subject matter of the contract, the third person’s acts and words, whether he acquiesced in the terms of the contract, performed its obligations, or accepted its benefits.” Central of Ga. R. Co. v. Woolfolk Chem. Works, 122 Ga. App. 789, 792 (178 SE2d 710) (1970). Therefore I believe that the case should be remanded to the trial court with direction that the trior of fact determine whether Bassett impliedly assumed the obligations of Barwick to Boss and that this determination be made on the basis of “all the circumstances” of the case as set forth in Central of Ga. R. Co., supra.