recovery of possession of the land and cancellation of the agreement. In August, 1927, the plaintiff entered into an agreement to sell the land to other parties.
. The defendant delivered his defence in October, 1927, and counterclaimed for repayment to him of all amounts paid on account of the alleged contract together with interest thereon.
McEvoy J., in his judgment, said that he was satisfied that the property was one of highly speculative value, and that the peculiar wording of the forfeiture clause was made for the purpose of providing what the parties considered would be a fair amount to be forfeited if the defendant should fail to carry out the agreement; and refused to relieve the defendant from the forfeiture of the cash payment of $2,700, in the circumstances revealed in the evidence.
He gave judgment for the plaintiff for possession of the land and for a declaration that under the terms of the agreement the same had become null and void and of no effect. He held that the defendant was entitled to recover all amounts paid by him in excess of the sum of $2,700 together with interest thereon at 5o per annum from the date of the sale by the plaintiff to the other parties above referred to. He refused to make any allowance to the defendant for alleged improvements to the property, but did not charge him with any occupation rent.
The plaintiff appealed to the Appellate Division against the judgment of McEvoy J., in so far as he held defendant entitled to recover any sum from the plaintiff. The defendant cross-appealed, asking that the amount awarded him by the judgment be increased to the whole amount paid by him with interest.
The Appellate Division, without written reasons, allowed the plaintiff's appeal, and dismissed the defendant's crossappeal. The defendant appealed to this Court.
On conclusion of the argument, the judgment of the Court was orally delivered by the Chief Justice, allowing the appeal to the extent of restoring the judgment of the trial judge. The Court was unable to construe the word " heretofore " in the agreement as meaning " theretofore" as had been suggested. As to the construction to be put upon the words " payments heretofore made," the Court