dissenting.
The majority would affirm the dismissal of the *102complaint in this case upon a ground completely different from that relied upon by the trial court.
The trial court granted defendant’s motion to quash upon the ground that “the matters alleged in the complaint do not bring the defendant within the category of persons doing business within the State of Oregon.” In appealing from that decision plaintiff contends, as an assignment of error, that the court erred in dismissing the case for want of jurisdiction upon that ground.
The majority, however, would not decide that question, but would base its opinion upon a discussion of the application of a contract provision between the parties which purports to confer exclusive jurisdiction upon the courts of Ohio. The majority concludes its opinion by saying that:
“The plaintiff introduced no evidence nor made any contention that the clause was unfair or that its enforcement was unreasonable.”
The majority then affirms the dismissal of the complaint
“in the absence of any substantial finding that the clause was unfair and enforcement would be unreasonable.”
The obvious reason why plaintiff made no such contention and introduced no such evidence is that until the decision by the majority in this case it had been the established law of Oregon, as stated in State ex rel Kahn v. Tazwell, 125 Or 528, 266 P 238, 59 ALR 1436 (1928), that a contract provision conferring exclusive jurisdiction upon the courts of another state is contrary to public policy and void.
Although defendant, in the affidavit and memorandum in support of its motion to quash, made *103reference to that contract provision, the primary thrust of defendant’s motion, and of all of the cases cited in its supporting memorandum, was that defendant was not doing business in Oregon. No contention whatever was made by defendant, either in the trial court or on this appeal, that the contract clause was valid and enforceable in the absence of a showing that it would be unfair and unreasonable to plaintiff to enforce such a provision of the contract, as would now be the law of Oregon under the majority opinion.
Under these circumstances, and while I do not necessarily disagree with the learned exposition of the law relating to such contract provisions, as set forth in the majority opinion, I would remand this case to the trial court in order that plaintiff may have an opportunity to offer evidence on this question. In my judgment, while a contract provision conferring exclusive jurisdiction upon the courts of Washington and California might not be unfair to an Oregon resident, a provision under which a private citizen of Oregon would be required to go over 2,000 miles to Ohio to litigate a claim against a corporation such as the Chem Industrial Company may well be unfair and unreasonable, particularly if most of the witnesses also reside in Oregon.
At the least, I would set this case for re-argument in order that plaintiff may be heard on this question before undertaking to change the law on this subject.①
See dissenting opinions in State Construction Corp. v. Scoggins, 259 Or 371, 485 P2d 391 at 400 (1971), and Chaney v. Fields Chevrolet Co., 92 Adv Sh 913 at 922, 258 Or 606, 484 P2d 824 at 828 (1971). See also Vestal, “Sua Sponte Consideration in Appellate Review,” 27 Ford L Rev 477 (1959).