Opinion by
Strang, C.:Action to recover damages for the conversion of certain merchandise. J. T. and A. D. Kelley, hardware merchants in the city of Salina, Kas., received from their mother, the defendant herein, $7,000, and gave their notes and a mortgage upon a stock of hardware as alleged security therefor. The mortgage was executed June 15, 1888, and filed immediately for record in the office of the register of deeds. June 21, 1888, the Baker Wire Company commenced a suit against Kelley & Kingman, a firm that was succeeded by Kelley Bros., and issued an attachment therein, which was levied by the plaintiff in error, the sheriff of Saline county, upon a portion of said stock of hardware, and removed and sold it. Mrs. Kelley, the mortgagee, commenced this suit against the sheriff for the conversion of the goods. The defendant below admitted the taking of the goods on the attachment, alleged that they were the property of A. D. and J. T. Kelley, doing business as Kelley Bros., and that the mortgage under which Mrs. Kelley claimed the goods was made to hinder and delay the creditors of Kelley Bros., and was fraudulent and void. The case was tried by a jury, and a verdict and judgment rendered in favor of Mrs. Kelley, sustaining her mortgage, and giving her damages in the sum of $1,049. Motion for a new trial was overruled, and the defendant brings the case here for review.
The first complaint of the plaintiff in error relates to the sixth paragraph of the court’s instruction. The exception relates to the following language in the instruction: “And that it was agreed at the time, outside of said mortgage, by the par*87ties thereto, that the mortgagors should retain possession of said property and sell the same for plaintiff as her agents, and account to her for th^ proceeds of such sales after deducting reasonable expenses for making the same, the said mortgage is valid.” It is alleged against this part of the instruction that there is no evidence to base it upon. Plaintiff in error claims that there is no evidence in the case showing that any agreement between the mortgagors and the mortgagee was made, at the time the mortgage was delivered, for the mortgagors to remain in possession and sell the goods for the mortgagee.
We think the evidence establishes an agreement outside of the mortgage, by which the mortgagors were to remain in possession and sell the goods for the mortgagee and account to her for the proceeds of such sales, and that such agreement was carried out between the parties thereto. Whether the agreement was made at the date of the mortgage or not we are unable to say; but the evidence tends to prove that' it was, and the verdict of the jury includes a finding to that effect. Nor do we think it material whether the agreement was co-temporary with the making of the mortgage, if it was made and the mortgagors were in possession of the goods, selling them for the mortgagee under said agreement, when the sheriff levied his attachment and removed a portion of the goods. The verdict of the jury includes a finding that they were, and we think there is plenty of evidence in the record to support such finding, and therefore evidence upon which to base the instructions complained of.
We think our views in relation to the instruction just considered disposes of the complaints with respect to instruction 16. Plaintiff complains of the action of the court in refusing the fourth instruction asked by the defendant below. This instruction is sufficiently covered by instruction 17 given by the court, and therefore this objection is not tenable.
The next contention of the plaintiff in error is, that the court erred in the measure of damages adopted at the trial of the ease. It is alleged that the proper measure of damages was *88the value of the goods taken in Kansas City, St. Louis, or Chicago, or some other wholesale point, with the freight to Salina added, while the court held that the measure of damages was the value of the goods in Salina, where they were converted. We think the court was right.
It is alleged that the court erred in permitting the defendant in error to state, over the objection of the plaintiff in error,, what her intention was in taking the chattel mortgage from her sons. This court, in the case of Gardom v. Woodward, 44 Kas. 758, has settled this contention against the plaintiff in .error. In that case the court says:
“Upon a question of fact as to whether a sale of personal property was made for the purpose of hindering, delaying and defrauding the creditors of the seller, it is competent for the seller as a witness to testify directly as to whether he in fact intended by the sale to hinder, delay or defraud his creditors.”
It is also claimed that the case should be reversed for the reason that the court expressed an opinion on a question of fact in issue in the case in the presence of the jury. The record shows that, in stating his ruling upon a question of the admissibility of evidence, the court used the following language in the presence of the jury, in speaking of a note and mortgage offered in evidence: “ It seems to me that it is plain, from the mortgage here, that this is simply a mistake of the date of the year.” The note appeared to be dated nearly a year subsequent to the date of the mortgage given to secure it. It was claimed that there was a mistake of a year in the date of the note. The alleged debt for which the note was given was created in November, 1887. The note was made about three months afterward, but was intended to be dated as of the date of the creation of the debt — November, 1887 — but was actually dated November, 1888. It is error for a court to express an opinion on a question of fact being tried by a jury, in the presence of a jury; but in this case the error of the court was not material, because the undisputed evidence showed a mistake had been made in the date of the note. The error of the court, not being material, is not a ground for *89reversing the case. These being all the questions presented to this court, it is recommended that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring.