How have courts treated the implied consent of counsel in cases where counsel objected to certain evidence at trial?

9 There is authority however for treating this sort of situation as one of implied consent. In Niedland v. United States, supra, defendant's counsel did not object to certain evidence when it was offered at trial but stated after the close of the testimony that he would object to the use of the evidence to support a claim of special damages which had not been pleaded. "The defendant did not assert that it was surprised, nor did it seek a continuance to present evidence in rebuttal." 338 F.2d at 258. The court treated the matter as if there had been implied consent because, aside from the lack of surprise and the failure to seek a continuance, the defendant had defended on the claim well enough partially to persuade the trier of the facts and it appeared that its failure to object was for tactical reasons. Id.