dissenting.
1. As I understand the majority opinion as rewritten after the answer of the Supreme Court to our certified question, it is still impliedly based on the assumption 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, apparently on the premise that if these two facts existed it would be up to Bassett to find out whether there would be any legal basis for a claim for royalties following a sale even though the contract between Barwick Industries, Inc. as seller and Bassett Furniture Industries of North Carolina, Inc. as purchaser is absolutely without the slightest ambiguity that Barwick, as this court stated in its certified question to the Supreme Court, agreed “to indemnify Bassett for the payment of any claims, demands or liabilities not listed in the contract.” In the absence of ground for inference that Barwick and Bassett actually conspired to use this language as a means of defrauding the plaintiff, I do not find a jury issue on the subject. There is no ground for such inference in the affidavits discussed in the majority opinion. Those establish without contradiction that Boss’ relation with Barwick never came up during the negotiations, they were not made aware of the claims and had no knowledge of the contract until three years later. Even exercising every legitimate inference against the grant of a summary judgment, I do not see how this testimony can be construed to admit of a jury question as to the purchaser’s knowledge of and assumption of a prior contract between the seller and the plaintiff. Our summary judgment law is not carried to such extremes. When the motion is made, the adverse party may not rest on his pleadings but his response “must set forth specific facts showing that there is a genuine issue for trial. If *253he does not so respond, summary judgment, if appropriate, shall be entered against him.” Code § 81A-156 (e). As was stated in Crutcher v. Crawford Land Co., 220 Ga. 298, 303 (138 SE2d 580) (1964): “We believe the Act was clearly intended to dispose of litigation expeditiously and avoid useless time and expense to go through a jury trial even though the petition fairly bristles with serious allegations, if when given notice and an opportunity to produce affidavits by persons competent to testify on their own knowledge to the truth of such allegations the pleader does nothing to contradict the affidavits of the movant which show there is no right of the opposite party to prevail.” To the same effect see Summer-Minter & Assoc. v. Giordano, 231 Ga. 601 (203 SE2d 173) (1974), and as quoted in Bible Farm Service v. House Hasson Hardware Co., 157 Ga. App. 358 (277 SE2d 341) (1981): “It is thus seen that it is the duty of each party at the [summary judgment] hearing to present his case in full.”
2. As regards the second division, where there has been a lawful and absolute sale of a company’s assets (not amounting to a merger of two companies) in which the purchasing company assumes specified liabilities only and pays a sum certain for the assets, the purchasing company is not responsible for other debts or liabilities of the selling company not included in the sale contract. See Carswell v. Nat. Exchange Bank, 165 Ga. 351, 357 (140 SE 755) (1927) holding that where one corporation purchases assets of another the duties and obligations are as set up in the contract between them. “ ‘The mere purchase by one corporation of the property and franchise of another corporation is not a consolidation of the two corporations.’ ” Id. Under these circumstances an unlisted liability of the seller is not assumed by the purchaser. That the opposite result follows from a true merger, see Mobley v. Hagedorn Const. Co., 168 Ga. 385 (147 SE 890) (1929). There is no question of merger in the present case, it follows that in the present case the unlisted liability of the seller is not chargeable to the purchaser where there is no actual knowledge on the part of the purchaser and where it appears from all the circumstances of the sale that the purchase without listing this liability was nevertheless bona fide on the part of the purchaser. As stated in National Factor &c. Corp. v. State Bank of Cochran, 224 Ga. 535, 539 (163 SE2d 817) (1968) quoting from Atlanta & St. A. B. R. Co. v. Barnes, 95 F2d 273: “Commercial transactions are not put within the strict fetters of constructive notice.” The Barnes case, in analogous circumstances, emphasizes that to render the third party liable the circumstances must be such as to raise a presumption of knowledge of the facts comprising the tortious misconduct or must reasonably support the sole inference that such misconduct is intended by him.
*254I would affirm. I am authorized to state that Judge Birdsong and Judge Sognier concur in this dissent.