In Control Data Corp. v. Garrison, 233 NW 2d 740 (Minn. 1975) the Minnesota Supreme Court quoted Webster’s New International Dictionary and found the preferred meaning of the word ‘susceptible’ as:
Of such a nature, character, or constitution as to admit or permit; capable of submitting successfully to the action, process, or operation;—with Of, followed usually by an action noun (or, less often, a verbal noun); as, a theory Susceptible of proof; a gem Susceptible of a brilliant polish; a theme Susceptible of being developed (or of development)
In this case the court found:
It is clear to us that the load-bearing capacity of the ground on which a structure is built is subject to scientific analysis by appropriate borings and tests. Where, as here, a building is constructed by the person who owns and is in possession of the land, in the absence of evidence of extraordinary circumstances, not present here, we hold that the capacity of the building site to bear the load placed on it is susceptible of knowledge.
The court went on to find:
“however difficult ascertainment of the fact might have been, defendant, who owned and was in possession of the building site, who was responsible for the construction, and who, through his agent, drove the pilings into the ground, must, we believe, be held able, as a matter of law, to measure the in-place characteristics of his work product, at least in the absence of extraordinary circumstances not disclosed by this record. A fact is ‘susceptible’ of knowledge within the definition set out above, even though physical circumstances in a given situation make determination of that fact burdensome and difficult. The question is not whether defendant acted reasonably in assuming the pilings were intact. The question is whether a defective piling can be distinguished from one which is not defective. Except for the difficulty of making the required inspection, the fact was clearly ascertainable. It was therefore susceptible of knowledge within the meaning of the interrogatory submitted to the jury.”
Other courts have found that to be actionable, a misrepresentation generally must relate to an existing or pre-existing fact which is susceptible of knowledge. Higgins v. Lawrence, 107 Mich.App. 178, 309 N.W.2d 194 (1981); 37 Am.Jur.2d Fraud and Deceit § 45. A statement of opinion or belief such as occurs in “puffing” generally cannot constitute a misrepresentation. W. Prosser, The Law of Torts, § 10.9, at 726 (4 ed. 1971).
Furthermore, projections, predictions and financial forecasts made on a reasonable basis are not actionable merely because they may ultimately prove incorrect. Polin v. Conductron Corp., 552 F.2d 797 (8th Cir. 1977), cert. denied, 434 U.S. 857, 98 S.Ct. 178, 54 L.Ed.2d 129 (1977); Lucas v. Florida Power & Light Co., 575 F.Supp. 552, 569 (S.D.Fla.1983). And as a general rule, an honest but mistaken estimate as to the value of a business is generally considered to be an opinion and not an actionable misrepresentation. Essenburg v. Russell, 346 Mich. 319, 78 N.W.2d 136 (1956).
In Kennedy v. Flo-Tronics, Inc., 143 NW 2d 827 (Minn. 1966) the court found:
“As a general rule, in order to constitute actionable fraud, a false representation must relate to a matter of fact which either exists in the present or has existed in the past. It must also relate to a fact which is susceptible of knowledge; otherwise, there is nothing in relation to which the person making it could state what he knew to be untrue.
“The principle is fundamental that fraud cannot be predicated upon what amounts to, as a matter of law, or in factual cases is found by the triers of the facts to be, the mere expression of an opinion, which is understood by the representee to be only such or cannot reasonably be understood to be anything else.” 23 Am.Jur., Fraud and Deceit, § 27.
Minn.Stat. § 336.2-313 ) provides in part: “(2) It is not necessary to the creation of an express warranty that the seller use formal words such as “warrant” or “guarantee” or that the seller have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the seller’s opinion or commendation of the goods does not create a warranty.”
Reliance in fraud cases is generally evaluated in the context of the aggrieved party’s intelligence, experience, and opportunity to investigate the facts at issue. Murphy v. Country House Inc., 307 Minn. 344, 351, 240 N.W.2d 507, 512 (1976); Davis v. ReTrac Mfg. Co., 276 Minn. 116, 118-19, 149 N.W.2d 37, 39-40 (1967). When a party conducts an independent factual investigation before it enters into a commercial transaction, that party cannot later claim that it reasonably relied on the alleged misrepresentation. Davis, 149 N.W.2d at 39-40.